EXHIBIT 10.26
EXECUTION VERSION
-----------------------------------------------------------------------
REVOLVING CREDIT AGREEMENT
dated as of February 5, 2002
among
CABOT INDUSTRIAL PROPERTIES, L.P.,
as Borrower,
JPMORGAN CHASE BANK,
as Lead Agent, Swing Lender, and Issuing Bank,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BANK ONE, NA,
as Syndication Agent,
FLEET NATIONAL BANK,
as Documentation Agent,
COMMERZBANK AKTIENGESELLSCHAFT,
as Documentation Agent,
and
THE BANKS PARTIES HERETO,
as Banks
-----------------------------------------------------------------------
TABLE OF CONTENTS
-----------------
ARTICLE I. DEFINITIONS......................................................1
SECTION 1.1. Definitions.............................................1
-----------
SECTION 1.2. Accounting Terms and Determinations.....................31
-----------------------------------
SECTION 1.3. Types of Borrowings.....................................32
-------------------
SECTION 1.4. Terms Generally.........................................32
---------------
ARTICLE II. THE CREDITS.....................................................33
SECTION 2.1. Loans...................................................33
-----
SECTION 2.2. Notice of Committed Borrowing or Swing
--------------------------------------
Borrowing..............................................................41
---------
SECTION 2.3. Notice to Banks; Funding of Loans.......................42
---------------------------------
SECTION 2.4. Notes...................................................43
-----
SECTION 2.5. Maturity of Loans.......................................44
-----------------
SECTION 2.6. Interest Rates..........................................44
--------------
SECTION 2.7. Fees....................................................46
----
SECTION 2.8. Mandatory Termination...................................47
---------------------
SECTION 2.9. Mandatory Prepayment....................................48
--------------------
SECTION 2.10. Optional Prepayments; Cancellation of
-------------------------------------
Commitments.............................................49
-----------
SECTION 2.11. General Provisions as to Payments.......................50
---------------------------------
SECTION 2.12. Funding Losses..........................................51
--------------
SECTION 2.13. Computation of Interest and Fees........................52
--------------------------------
SECTION 2.14. Method of Electing Interest Rates.......................52
---------------------------------
ARTICLE III. CONDITIONS.....................................................62
SECTION 3.1. Closing.................................................62
-------
SECTION 3.2. Each Credit Event.......................................65
-----------------
ARTICLE IV. REPRESENTATIONS AND WARRANTIES..................................67
SECTION 4.1. Existence and Power.....................................67
-------------------
SECTION 4.2. Power and Authority.....................................67
-------------------
SECTION 4.3. No Violation............................................67
------------
SECTION 4.4. Financial Information...................................68
---------------------
SECTION 4.5. Litigation..............................................68
----------
SECTION 4.6. Compliance with ERISA...................................68
---------------------
SECTION 4.7. Environmental Compliance................................69
------------------------
SECTION 4.8. Taxes...................................................69
-----
SECTION 4.9. Full Disclosure.........................................70
---------------
SECTION 4.10. Solvency................................................70
--------
SECTION 4.11. Use of Proceeds; Margin Regulations.....................70
-----------------------------------
SECTION 4.12. Governmental Approvals..................................70
----------------------
i
SECTION 4.13. Investment Company Act, Public Utility
--------------------------------------
Holding Company Act, Etc...............................................71
------------------------
SECTION 4.14. Closing Date Transactions...............................71
-------------------------
SECTION 4.15. Representations and Warranties in Loan
--------------------------------------
Documents..............................................................71
---------
SECTION 4.16. Patents, Trademarks, Etc................................71
------------------------
SECTION 4.17. No Default..............................................72
----------
SECTION 4.18. Licenses, etc...........................................72
-------------
SECTION 4.19. Compliance With Law.....................................72
-------------------
SECTION 4.20. No Burdensome Restrictions..............................72
--------------------------
SECTION 4.21. Brokers' Fees...........................................72
-------------
SECTION 4.22. Labor Matters...........................................73
-------------
SECTION 4.23. Organizational Documents................................73
------------------------
SECTION 4.24. [Reserved]..............................................73
----------
SECTION 4.25. Principal Offices.......................................73
-----------------
SECTION 4.26. REIT Status.............................................73
-----------
SECTION 4.27. Ownership of Property...................................73
---------------------
ARTICLE V. AFFIRMATIVE AND NEGATIVE COVENANTS...............................74
SECTION 5.1. Information.............................................74
-----------
SECTION 5.2. Payment of Obligations..................................79
----------------------
SECTION 5.3. Maintenance of Property; Insurance......................79
----------------------------------
SECTION 5.4. Intentionally Omitted...................................80
---------------------
SECTION 5.5. Compliance with Laws....................................80
--------------------
SECTION 5.6. Inspection of Property, Books and Records...............80
-----------------------------------------
SECTION 5.7. Existence...............................................82
---------
SECTION 5.8. Financial Covenants.....................................82
-------------------
SECTION 5.9. Restriction on Fundamental Changes;
-----------------------------------
Operation and Control..................................................85
---------------------
SECTION 5.10. Changes in Business.....................................85
-------------------
SECTION 5.11. Affiliate Transactions..................................86
----------------------
SECTION 5.12. Fiscal Year; Fiscal Quarter.............................86
---------------------------
SECTION 5.13. Margin Stock............................................86
------------
SECTION 5.14. Use of Proceeds.........................................86
---------------
SECTION 5.15. Interest Rate Protection................................87
------------------------
SECTION 5.16. Liens; Release of Liens.................................87
-----------------------
SECTION 5.17. Sale of Unencumbered Asset Pool
-------------------------------
Properties.............................................................88
----------
SECTION 5.18. REIT Status.............................................88
-----------
SECTION 5.19. No Negative Pledges.....................................88
-------------------
SECTION 5.20. Additional Guarantors; Release of
---------------------------------
Guarantors.............................................................89
----------
SECTION 5.21. No Ownership of Unencumbered Asset Pool
---------------------------------------
Property by CMBS Borrowers.............................................89
--------------------------
ii
ARTICLE VI. DEFAULTS........................................................89
SECTION 6.1. Events of Default.......................................89
-----------------
SECTION 6.2. Rights and Remedies.....................................93
-------------------
SECTION 6.3. Notice of Default.......................................93
-----------------
ARTICLE VII. THE LEAD AGENT.................................................94
SECTION 7.1. Appointment and Authorization...........................94
-----------------------------
SECTION 7.2. Lead Agent and Affiliates...............................94
-------------------------
SECTION 7.3. Action by Lead Agent....................................94
--------------------
SECTION 7.4. Consultation with Experts...............................94
-------------------------
SECTION 7.5. Liability of Lead Agent.................................94
-----------------------
SECTION 7.6. Indemnification.........................................95
---------------
SECTION 7.7. Credit Decision.........................................95
---------------
SECTION 7.8. Successor Lead Agent....................................95
--------------------
SECTION 7.9. Lead Agent's Fee........................................96
----------------
SECTION 7.10. Copies of Notices.......................................96
-----------------
ARTICLE VIII. CHANGE IN CIRCUMSTANCES.......................................97
SECTION 8.1. Basis for Determining Interest Rate
-----------------------------------
Inadequate or Unfair...................................................97
--------------------
SECTION 8.2. Illegality..............................................97
----------
SECTION 8.3. Increased Cost and Reduced Return.......................98
---------------------------------
SECTION 8.4. Taxes...................................................100
-----
SECTION 8.5. Base Rate Loans Substituted for Affected
----------------------------------------
Euro-Dollar Loans......................................................102
-----------------
ARTICLE IX. MISCELLANEOUS...................................................103
SECTION 9.1. Notices.................................................103
-------
SECTION 9.2. No Waivers..............................................104
----------
SECTION 9.3. Expenses: Indemnification...............................104
-------------------------
SECTION 9.4. Sharing of Set-Offs.....................................105
-------------------
SECTION 9.5. Amendments and Waivers..................................106
----------------------
SECTION 9.6. Successors and Assigns..................................107
----------------------
SECTION 9.7. Governing Law; Submission to Jurisdiction...............111
-----------------------------------------
SECTION 9.8. Marshaling; Recapture...................................112
---------------------
SECTION 9.9. Counterparts; Integration; Effectiveness................112
----------------------------------------
SECTION 9.10. WAIVER OF JURY TRIAL....................................113
--------------------
SECTION 9.11. Survival................................................113
--------
SECTION 9.12. Domicile of Loans and Letters of Credit.................113
---------------------------------------
SECTION 9.13. Limitation of Liability.................................113
-----------------------
SECTION 9.14. Additional Commitment...................................113
---------------------
SECTION 9.15. CMBS Borrowers..........................................115
--------------
iii
Exhibits
--------
A Note
B Assignment and Assumption Agreement
C Money Market Quote Request
D Invitation for Money Market Quotes
E Money Market Quote
F Designation Agreement
G Form of Subsidiary Guaranty
Schedules
---------
G Subsidiary Guarantors
U Unencumbered Asset Pool Properties
4.27 Real Property Assets
iv
REVOLVING CREDIT AGREEMENT
--------------------------
REVOLVING CREDIT AGREEMENT, dated as of February 5, 2002, among CABOT
INDUSTRIAL PROPERTIES, L.P. (the "Borrower"), JPMORGAN CHASE BANK, as Swing
Lender, Issuing Bank and Lead Agent for the Banks, BANK OF AMERICA, N.A., as
Syndication Agent, BANK ONE, NA, as Syndication Agent, FLEET NATIONAL BANK, as
Documentation Agent, COMMERZBANK AKTIENGESELLSCHAFT, as Documentation Agent, and
the BANKS parties hereto (the "Banks").
The parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have the
following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.1(c).
"Accepting Bank" has the meaning set forth in Section 9.14(b).
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.6(c).
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Lead Agent and
submitted to the Lead Agent, duly completed by such Bank.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities or other beneficial interest,
by contract or otherwise; and the terms "controlling" and "controlled" have the
meanings correlative to the foregoing.
"Agreement" means this Revolving Credit Agreement as the same may from
time to time hereafter be modified, supplemented or amended.
"Annual EBITDA" means, as of the last day of each calendar quarter, an
amount equal to (i) total revenues relating to all Real Property Assets of
the Consolidated Businesses or attributable to the Consolidated Businesses'
interest in Minority Holdings for the previous four (4) consecutive calendar
quarters including the quarter then ended, calculated in accordance with GAAP,
plus (ii) interest and other income of the Consolidated Businesses, including,
without limitation, real estate service revenues, for such period, less (iii)
total operating expenses and other expenses relating to such Real Property
Assets and attributable to the Consolidated Businesses' interest in Minority
Holdings for such period (other than interest, income taxes, depreciation,
amortization, and other non-cash items), less (iv) without duplication, total
operating expenses (including general overhead expenses) and other expenses of
the Consolidated Businesses and attributable to the Consolidated Businesses'
interest in Minority Holdings (other than interest, taxes, depreciation,
amortization and other noncash items), for such period.
"Applicable Credit Rating" means the rating assigned by the Rating
Agencies to CalWest's senior unsecured long term indebtedness.
"Applicable Interest Rate" means the lesser of (x) the rate at which the
interest rate applicable to any floating rate Debt could be fixed, at the time
of calculation, by the Borrower entering into an unsecured interest rate swap
agreement (or, if such rate is incapable of being fixed by entering into an
unsecured interest rate swap agreement at the time of calculation, a reasonably
determined fixed rate equivalent), and (y) the rate at which the interest rate
applicable to such floating rate Debt is actually capped, at the time of
calculation, if the Borrower has entered into an interest rate cap agreement
with respect thereto or if the documentation for such Debt contains a cap.
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of
its Money Market Loans, its Money Market Lending Office.
"Applicable Margin" means with respect to each Euro-Dollar Loan the
respective percentages per annum determined, at any time, based on the range
into which the Applicable Credit Rating (if any) then falls, in accordance with
the table set forth below. Any change in the Applicable Credit Rating shall be
effective immediately as of the date on which any of the Rating Agencies
announces a change in the Applicable Credit Rating or the date on which CalWest
has no Applicable Credit Rating. In the event that CalWest receives
2
more than two (2) Applicable Credit Ratings that are not equivalent, the
Applicable Margin shall be determined based on the lower of such two (2)
Applicable Credit Ratings. In the event that CalWest receives more than two (2)
Applicable Credit Ratings and such Applicable Credit Ratings are not equivalent,
the Applicable Margin shall be determined by the lower of the two (2) highest
Applicable Credit Ratings, provided that each of such two (2) highest Applicable
Credit Ratings shall be Investment Grade Ratings and at least one of which shall
be an Investment Grade Rating from S&P or Xxxxx'x; provided further, that if
neither of the two (2) highest Applicable Credit Ratings were issued by S&P or
Xxxxx'x, the Applicable Margin shall be determined by the higher of the
Applicable Credit Ratings from S&P or Xxxxx'x.
-----------------------------------------------------------------------
Applicable Credit Rating Applicable Margin for Euro-Dollar
(S&P/Xxxxx'x) Loans (% per annum)
-----------------------------------------------------------------------
A-/A3 (or better) 0.65%
-----------------------------------------------------------------------
BBB+/Baal 0.75%
-----------------------------------------------------------------------
BBB/Baa2 0.80%
-----------------------------------------------------------------------
BBB-/Baa3 1.00%
-----------------------------------------------------------------------
Less than Investment Grade 1.40%
Rating or no rating
-----------------------------------------------------------------------
"Approved Uses" has the meaning set forth in Section 5.14.
"Assignee" has the meaning set forth in Section 9.6(c).
"Available Facility" means, at any particular time, an amount equal to the
lesser of (x) the Maximum Facility Amount and (y) the maximum amount that
permits compliance with Section 5.8 hereof.
"Bank" means each bank listed on the signature pages hereof, each Assignee
which becomes a Bank pursuant to Section 9.6(c), and their respective successors
and each Designated Lender; provided, however, that the term "Bank" shall
exclude each Designated Lender when used in reference to a Committed Loan, the
Commitments or terms relating to the Committed Loans and the Commitments and
shall further exclude each Designated Lender for all other purposes hereunder
except that any Designated Lender which funds a Money Market Loan shall, subject
to Section 9.6(d), have the rights (including the rights given to a Bank
contained in Section 9.3 and otherwise in Article 9) and obligations of a Bank
associated with holding such Money Market Loan.
"Bank Affiliate" means, (a) with respect to any Bank, (i) an Affiliate of
such Bank or (ii) any entity (whether a corporation, partnership, trust or
3
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by such Bank or an Affiliate of such
Bank and (b) with respect to any Bank that is a fund which invests in bank loans
and similar extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment advisor as
such Bank or by an Affiliate of such investment advisor.
"Bankruptcy Code" means Title 11 of the United States Code, entitled
"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"Base Rate" means, for any day, a rate per annum equal to the sum of (a)
the higher of (i) the Prime Rate for such day and (ii) the sum of the Federal
Funds Rate for such day plus 0.5% and (b) the respective percentages per annum
determined, at any time, based on the range into which the Applicable Credit
Rating (if any) then falls, in accordance with the table set forth below.
-----------------------------------------------------------------------
Applicable Credit Rating Percentage Included in Calculation
(S&P/Xxxxx'x) of Base Rate Loans (% per annum)
-----------------------------------------------------------------------
BBB/Baa2 or higher 0.0%
-----------------------------------------------------------------------
BBB-/Baa3 0.25%
-----------------------------------------------------------------------
Less than Investment Grade 0.70%
Rating or no rating
-----------------------------------------------------------------------
In the event that CalWest receives two (2) Applicable Credit Ratings that are
not equivalent, the calculation set forth in clause (b) of this definition shall
be determined by the lower of such two (2) Applicable Credit Ratings. In the
event that CalWest receives more than two (2) Applicable Credit Ratings and such
Applicable Credit Ratings are not equivalent, the calculation set forth in
clause (b) of this definition shall be determined by the lower of the two (2)
highest Applicable Credit Ratings, provided that each of such two (2) highest
Applicable Credit Ratings shall be Investment Grade Ratings and at least one of
which shall be an Investment Grade Rating from S&P or Xxxxx'x; provided further,
that if neither of the two (2) highest Applicable Credit Ratings were issued by
S&P or Xxxxx'x, the calculation set forth in clause (b) of this definition shall
be determined by the higher of the Applicable Credit Ratings from S&P or
Xxxxx'x.
4
"Base Rate Borrowing" means a Borrowing comprised of Base Rate Loans.
"Base Rate Loan" means a Committed Loan made or to be made by a Bank as a
Base Rate Loan in accordance with the applicable Notice of Committed Borrowing,
Notice of Interest Rate Election or pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means Cabot Industrial Properties, L.P., a Delaware limited
partnership, and its successors.
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower at the same time by one or more of the Banks pursuant to Article II.
When categorized with respect to pricing, a Borrowing is a "Domestic Borrowing"
if such Loans are Base Rate Loans or Swing Loans, or a "Euro-Dollar Borrowing"
if such Loans are Euro-Dollar Loans. When categorized with respect to type of
Loan under Article II, a Borrowing is a "Committed Borrowing" if such Loans are
Committed Loans, a "Swing Borrowing" if such Loans are Swing Loans or a "Money
Market Borrowing" if such Loans are Money Market Loans.
"Bridge Loan" means those certain loans made pursuant to the Loan
Agreement dated as of December 5, 2001 between CalWest, Rooster Acquisition
Corp., Xxxxxxx Xxxxx Mortgage Company, as Administrative Agent, and the other
parties thereto (the "Bridge Loan Agreement") in an aggregate principal amount
not to exceed $1.225 billion.
"Bridge Loan Agreement" has the meaning set forth in the definition of
"Bridge Loan".
"Cabot Trust" means Cabot Industrial Trust, a Maryland real estate
investment trust.
"Cabot Trust Guaranty" means that certain Guaranty of Payment, dated as of
the date hereof, made by Cabot Trust to and in favor of the Lead Agent, for the
benefit of the Banks, as the same may from time to time hereafter be modified,
supplemented or amended.
5
"CalWest" means CalWest Industrial Properties, LLC, a California limited
liability company.
"CalWest Guaranty" means that certain Guaranty of Payment, dated as of the
date hereof, made by CalWest to and in favor of the Lead Agent, for the benefit
of the Banks, as the same may from time to time hereafter be modified,
supplemented or amended.
"Capital Expenditures" means, for any period, without duplication, the sum
of all expenditures (whether paid in cash or accrued as a liability) by the
Consolidated Businesses which are capitalized on a consolidated balance sheet of
the Consolidated Businesses in conformity with GAAP, but less (i) all capital
expenditures made with respect to tenant improvements and leasing commissions,
(ii) all capital expenditures made with respect to the acquisition or
development by the Consolidated Businesses of any interest in real property and
(iii) capital expenditures made from the proceeds of insurance or condemnation
awards (or payments in lieu thereof) or indemnity payments received during such
period by the Consolidated Businesses from third parties.
"Capital Lease Obligations" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
applied on a consistent basis and, for the purposes of this Agreement, the
amount of such obligations at any time shall be the capitalized amount thereof
at such time determined in accordance with GAAP applied on a consistent basis.
"Cash or Cash Equivalents" means (i) cash, (ii) direct obligations of the
United States Government, including, without limitation, treasury bills, notes
and bonds, (iii) interest bearing or discounted obligations of Federal agencies
and government sponsored entities or pools of such instruments offered by banks
rated AA or better by S&P or Aa2 or better by Xxxxx'x at the time of acquisition
thereof and dealers, including, without limitation, Federal Home Loan Mortgage
Corporation participation sale certificates, Government National Mortgage
Association modified passthrough certificates, Federal National Mortgage
Association bonds and notes, and Federal Farm Credit System securities, (iv)
time deposits, domestic and Eurodollar certificates of deposit, banker's
acceptances, commercial paper rated at least A-1 by S&P and P-1 by Xxxxx'x at
the time of acquisition thereof, and/or guaranteed by an entity with an Aa2
rating by Xxxxx'x, an
6
AA rating by S&P, or better rated credit at the time of acquisition thereof,
floating rate notes, other money market instruments and letters of credit each
issued by banks which have a long-term debt rating of at least AA by S&P or Aa2
by Xxxxx'x at the time of acquisition thereof, (v) obligations of domestic
corporations, including, without limitation, commercial paper, bonds,
debentures, and loan participations, each of which is rated at least AA by S&P,
and/or Aa2 by Xxxxx'x, and/or unconditionally guaranteed by an entity with an AA
rating by S&P, an Aa2 rating by Xxxxx'x, or better rated credit at the time of
acquisition thereof, (vi) obligations issued by states and local governments or
their agencies, rated at least MIG-1 by Xxxxx'x and/or SP-1 by S&P at the time
of acquisition thereof and/or supported by an irrevocable letter of credit of a
bank with a long-term debt rating of at least AA by S&P or Aa2 by Xxxxx'x at the
time of acquisition thereof, (vii) repurchase agreements with major banks and
primary government securities dealers fully secured by U.S. Government or agency
collateral equal to or exceeding the principal amount on a daily basis and held
in safekeeping, (viii) real estate loan pool participations, guaranteed by an
entity with an AA rating by S&P or an Aa2 rating by Xxxxx'x, or better rated
credit at the time of acquisition thereof, and (ix) shares of any mutual fund
that has its assets primarily invested in the types of investments referred to
in the preceding clauses (i) through (viii).
"Cash Flow" means, as of the last day of each calendar quarter, an amount
equal to (a) net income of the Consolidated Businesses (after deduction of all
Property Expenses, other expenses, taxes, distributions to holders of preferred
equity interests and other proper charges) for the previous four (4) consecutive
calendar quarters, including the quarter then ended, plus (b) depreciation,
amortization and all other non-cash charges of the Consolidated Businesses for
such period, plus (c) all extraordinary nonrecurring cash items of income (or
minus all extraordinary nonrecurring cash items of loss) of the Consolidated
Businesses for such period, minus (d) to the extent not already deducted in the
determination of net income, cash payments for all taxes paid by the
Consolidated Businesses during such period, minus (e) to the extent not already
deducted in the determination of net income, all Capital Expenditures and all
capital expenditures made with respect to tenant improvements and leasing
commissions made by the Consolidated Businesses during such period, minus (f) to
the extent not already deducted in the determination of net income, Total Debt
Service for such period, all as determined in accordance with GAAP.
"Closing Date" means the date on which the Lead Agent shall have received
the documents specified in or pursuant to Section 3.1 and all conditions in
Section 3.1 shall have been satisfied.
7
"CMBS Borrowers" means the special-purpose Subsidiaries of CalWest that
are the borrowers under the CMBS Transaction.
"CMBS Transaction" means the collateralized mortgage-backed securities
transaction to be entered into after the Closing Date by a special-purpose
Subsidiary of CalWest in order to refinance all of the remaining Debt under the
Bridge Loan.
"Commercial Letter of Credit" means any documentary letter of credit
issued by an Issuing Bank pursuant to Section 2A.1 for the account of the
Borrower which is drawable upon presentation of documents evidencing the sale or
shipment of goods purchased by the Borrower in the ordinary course of its
business.
"Commitment" means, with respect to each Bank, the amount committed by
such Bank pursuant to this Agreement with respect to any Loans or Letters of
Credit (including participations therein), as such amount may be reduced from
time to time pursuant to Section 2.10.
"Commitment Increase" has the meaning set forth in Section 9.14(b).
"Committed Loan" means a Loan made or to be made by a Bank pursuant to
Section 2.1(a); provided that, if any such Loan (or portions thereof) is
combined with any other such Loan or subdivided pursuant to a Notice of Interest
Rate Election, the term "Committed Loan" shall refer to the combined principal
amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be. "Committed Loan"
shall also mean a Loan converted from a Swing Loan in accordance with to Section
2.1(b)(ii).
"Consolidated Businesses" means, collectively, (a) CalWest, Cabot Trust,
the Borrower and their respective Consolidated Subsidiaries, and (b) the CMBS
Borrowers.
"Consolidated Subsidiary" means, at any date and as to any specified
Person, any Subsidiary or other Person which is consolidated with the specified
Person in accordance with GAAP, and shall exclude the CMBS Borrowers.
"Consolidated Tangible Net Worth" means, at any date, the consolidated
stockholders' or partners' equity of the Consolidated Businesses, less their
Intangible Assets, all determined in accordance with GAAP as of such date. For
purposes of this definition "Intangible Assets" means, with respect to any such
intangible assets, the amount (to the extent reflected in
8
determining such consolidated stockholders' or partners' equity) of (i) all
write-ups after the date hereof in the book value of any asset owned by the
Consolidated Businesses and (ii) all unamortized debt discount and expense,
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, anticipated future benefit of tax loss carry-forwards, copyrights,
organization or developmental expenses and other intangible assets.
"Contingent Obligation" as to any Person means, without duplication, (i)
any contingent obligation of such Person shown on such Person's balance sheet in
accordance with GAAP, and (ii) any obligation disclosed in the footnotes to such
Person's financial statements in accordance with GAAP, guarantying partially or
in whole any Debt, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. The amount of any Contingent Obligation described in the preceding
clause (ii) shall be deemed to be (a) with respect to a guaranty of interest or
interest and principal, or an operating income guaranty, the sum of all payments
required to be made thereunder (which in the case of an operating income
guaranty shall be deemed to be equal to the debt service for the note secured
thereby), calculated at the Applicable Interest Rate, through (i) in the case of
an interest or interest and principal guaranty, the stated date of maturity of
the obligation (and commencing on the date interest could first be payable
thereunder), and (ii) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (b) with respect to all
guarantees not covered by the preceding clause (a), an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
guaranty is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of the Borrower and the Guarantors required to
be delivered pursuant to Section 5.1 hereof. Notwithstanding anything contained
herein to the contrary, guarantees of completion shall not be deemed to be
Contingent Obligations unless and until a claim for payment or performance has
been made thereunder, at which time any such guaranty of completion shall be
deemed to be a Contingent Obligation in an amount equal to any such claim.
Subject to the preceding sentence, (y) in the case of a joint and several
guaranty given by such Person and another Person (but only to the extent such
guaranty is recourse, directly or indirectly to the Borrower or a Guarantor),
the amount of the guaranty shall be deemed to be 100% thereof unless and only to
the extent that such
9
other Person has delivered Cash or Cash Equivalents to secure all or any part of
such Person's guaranteed obligations, and (z) in the case of a guaranty (whether
or not joint and several) of an obligation otherwise constituting Debt of such
Person, the amount of such guaranty shall be deemed to be only that amount in
excess of the amount of the obligation constituting Debt of such Person.
Notwithstanding anything contained herein to the contrary, "Contingent
Obligations" shall not be deemed to include guarantees of Unused Commitments or
of construction loans to the extent the same have not been drawn.
"Credit Event" has the meaning set forth in Section 3.2.
"Debt" of any Person means, without duplication, (A) as shown on such
Person's consolidated balance sheet (i) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property and (ii) all
indebtedness of such Person evidenced by a note, bond, debenture or similar
instrument (whether or not disbursed in full in the case of a construction
loan), (B) the face amount of all letters of credit issued for the account or
upon the application of such Person and, without duplication, all unreimbursed
amounts drawn thereunder, (C) all guaranties by such Person of Indebtedness of
others and other Contingent Obligations of such Person, (D) all payment
obligations of such Person under any interest rate protection agreement
(including, without limitation, any interest rate swaps, caps, floors, collars
and similar agreements), currency swaps and similar agreements which were not
entered into specifically in connection with Debt set forth in clause (A), (B)
or (C) above, (E) all obligations of such Person under conditional sale or other
title retention agreements relating to property or assets purchased by such
Person, (F) all obligations of such Person issued or assumed as the deferred
purchase price of property or services, (G) all Debt of others secured by (or
for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, (H)
all Capital Lease Obligations of such Person, (I) to the extent not otherwise
included, all obligations of such Person to purchase or redeem any shares of
equity securities issued by such Person, and (J) all obligations of such Person
in respect of any so-called "synthetic lease" (i.e., a lease of property which
is treated as an operating lease under GAAP and as a loan or financing for U.S.
income tax purposes). For purposes of this Agreement, Debt (other than
Contingent Obligations) of the Consolidated Businesses shall be deemed to
include only the Consolidated Businesses' pro rata share (such share being based
upon the percentage ownership interest) of the Debt of any Person in which the
Consolidated Businesses, directly or indirectly, owns an interest, provided that
such Debt
10
is nonrecourse, both directly and indirectly, to the Consolidated Businesses.
For the avoidance of doubt, Debt shall not include preferred equity interests in
such Person.
"Declining Bank" has the meaning set forth in Section 9.14(b) hereof.
"Default" means any condition or event which with the giving of notice or
lapse of time or both would, unless cured or waived, become an Event of Default.
"Designated Lender" means a special purpose corporation that (i) shall
have become a party to this Agreement pursuant to Section 9.6(d), and (ii) is
not otherwise a Bank.
"Designated Lender Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the obligation of the
Borrower to repay Money Market Loans made by Designated Lenders, and "Designated
Lender Note" means any one of such promissory notes issued under Section 9.6(d)
hereof.
"Designating Lender" has the meaning set forth in Section 9.6(d) hereof.
"Designation Agreement" means a designation agreement in substantially the
form of Exhibit F attached hereto, entered into by a Bank and a Designated
Lender and accepted by the Lead Agent.
"Development Costs" has the meaning set forth in Section 5.8(i)(2) hereof.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
"Domestic Lending Office" means, as to each Bank, its office located
within the United States at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office within the United States as such Bank may
hereafter designate as its Domestic Lending Office by notice to the Borrower and
the Lead Agent; provided that no Bank shall be permitted to change its Domestic
Lending Office if as a result of such change either (i) pursuant to the
provisions of Section 8.1 or Section 8.2, the Borrower would be unable to
maintain any Loans as Euro-Dollar Loans or (ii)
11
the Borrower would be required to make any payment to such Bank pursuant to the
provisions of Section 8.3 or Section 8.4.
"Environmental Affiliate" means any partnership, joint venture, trust or
corporation in which an equity interest is owned by a Consolidated Business,
either directly or indirectly.
"Environmental Claim" means any notice, claim, demand or similar
communication (written or oral) against the Borrower, any of the Environmental
Affiliates, or any Indemnitee by any Person alleging potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damage, property damage, personal injuries, fines or penalties arising
out of, based on or resulting from (i) the presence, or release, caused by the
Borrower or any of the Environmental Affiliates, into the environment, of any
material amount of Material of Environmental Concern at any location, whether or
not owned by such Person, or (ii) circumstances forming the basis of any
violation or alleged violation, by the Borrower or any of the Environmental
Affiliates, of any Environmental Law, in each case which would reasonably be
expected to have a Material Adverse Effect.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to Releases of
Materials of Environmental Concern into the environment, including, without
limitation, ambient air, surface water, ground water or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, Material of
Environmental Concern or hazardous wastes or the cleanup or other remediation
thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Consolidated Businesses and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with any of the Consolidated
Businesses, are treated as a single employer under Section 414 of the Internal
Revenue Code.
12
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower
and the Lead Agent; provided that no Bank shall be permitted to change its
Euro-Dollar Lending Office if as a result of such change either (i) pursuant to
the provisions of Section 8.1 or Section 8.2, the Borrower would be unable to
maintain any Loans as Euro-Dollar Loans or (ii) the Borrower would be required
to make any payment to such Bank pursuant to the provisions of Sections 8.3 or
Section 8.4.
"Euro-Dollar Loan" means a Committed Loan made or to be made by a Bank as
a Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing or Notice of Interest Rate Election.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.6(c).
"Event of Default" has the meaning set forth in Section 6.1.
"Extension Date" has the meaning set forth in Section 2.8(b).
"Extension Fee" means a fee in an amount equal to twenty basis points
(0.20%) due and payable on the aggregate amount of the continuing Commitments on
the date the Maturity Date is extended pursuant to the terms of Section 2.8(b)
hereof.
"Extension Notice" has the meaning set forth in Section 2.8(b).
"Extension Option" has the meaning set forth in Section 2.8(b).
"Facility" means the revolving credit facility established pursuant to
this Agreement.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the
13
Domestic Business Day next succeeding such day; provided that (i) if such day is
not a Domestic Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii) if no such rate
is so published on such next succeeding Domestic Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to JPMorgan Chase Bank on
such day for such transactions as determined by the Lead Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System as constituted from time to time.
"FIRREA" means the Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
"FMV Cap Rate" means 9.25% per annum.
"GAAP" means generally accepted accounting principles recognized as such
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination.
"Governmental Authority" means any Federal, state or local government or
any other political subdivision thereof or agency exercising executive,
legislative, judicial, regulatory or administrative functions having
jurisdiction over the Borrower or any Real Property Asset.
"Guarantors" means (i) Cabot Trust, (ii) CalWest, (iii) the Subsidiary
Guarantors, and the successors of each of the foregoing.
"Guaranties" means, collectively, the Subsidiary Guaranty, the CalWest
Guaranty, and the Cabot Trust Guaranty, each individually, a "Guaranty".
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Initial Commitments" means the Commitments existing as of the Closing
Date which in the aggregate shall be equal to the Maximum Facility Amount as of
the Closing Date.
"Interest Period" means: (1) With respect to each Euro-Dollar Borrowing,
the period commencing on the date of such Borrowing specified in
14
the applicable Notice of Committed Borrowing or the date of continuation or
conversion specified in the applicable Notice of Interest Rate Election, as the
case may be, and ending one, two, three or six months thereafter, as the
Borrower may elect in the applicable Notice of Committed Borrowing or in the
applicable Notice of Interest Rate Election; provided that:
(a) any such Interest Period that would otherwise end on a day that
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any such Interest Period that begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month;
(c) if any such Interest Period includes a date on which a payment
of principal of the Loans is required to be made under Section 2.9 but
does not end on such date, then, without affecting the Borrower's
liability under Section 2.12 for any sums which, but for the application
of this subsection (c) would be due from the Borrower, (i) the principal
amount (if any) of each Euro-Dollar Loan required to be repaid on such
date shall have an Interest Period ending on such date and (ii) the
remainder (if any) of each such Euro-Dollar Loan shall have an Interest
Period determined as set forth above; and
(d) any such Interest Period that would otherwise end after the
Maturity Date shall end on the Maturity Date.
(2) With respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing specified in the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election and ending on the last Domestic Business Day of
the calendar quarter in which such Borrowing was made, or, if earlier, the
Maturity Date or the date of prepayment of such Borrowing; provided that if any
such Interest Period would end on a day other than a Domestic Business Day, such
Interest Period shall be extended to the next succeeding Domestic Business Day.
(3) With respect to each Money Market LIBOR Loan, the period commencing on the
date of such Borrowing specified in the applicable Notice of Money Market
Borrowing and ending one, two, three or six months
15
thereafter, as the Borrower may elect in the applicable Notice of Money Market
Borrowing in accordance with Section 2.1(c); provided that:
(a) any such Interest Period that would otherwise end on a day that
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any such Interest Period that begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month;
(c) if any such Interest Period includes a date on which a payment
of principal of the Loans is required to be made under Section 2.9 but
does not end on such date, then, without affecting the Borrower's
liability under Section 2.12 for any sums which, but for the application
of this subsection (c) would be due from the Borrower, (i) the principal
amount (if any) of each Money Market LIBOR Loan required to be repaid on
such date shall have an Interest Period ending on such date, and (ii) the
remainder (if any) of each such Money Market LIBOR Loan shall have an
interest Period determined as set forth above; and
(d) any such Interest Period that would otherwise end after the
Maturity Date shall end on the Maturity Date.
(4) With respect to each Money Market Absolute Rate Loan, the period commencing
on the date of such Borrowing specified in the applicable Notice of Money Market
Borrowing and ending such number of days thereafter (but not less than fourteen
(14) days or more than one hundred eighty (180) days) as the Borrower may elect
in the applicable Notice of Money Market Borrowing in accordance with Section
2.1(c); provided that:
(a) any such Interest Period that would otherwise end on a day that
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day;
(b) if any such Interest Period includes a date on which a payment
of principal of the Loans is required to be made under Section 2.9 but
does not end on such date, then (i) the principal amount (if any)
16
of each Money Market Absolute Rate Loan required to be repaid on such date
shall have an Interest Period ending on such date, and (ii) the remainder
(if any) of each such Money Market Absolute Rate Loan shall have an
Interest Period determined as set forth above; and
(c) any such Interest Period that would otherwise end after the
Maturity Date shall end on the Maturity Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means, with respect to any Person, (i) any purchase or other
acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
(iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Debt to such Person arising from a sale of property by such Person
other than in the ordinary course of its business, and (iv) any purchase or
other acquisition by that Person of real property, whether directly or
indirectly. The amount of any Investment shall be the original cost of such
Investment (together with all capital improvement costs thereafter paid with
respect to such Investment), without any adjustments for increases or decreases
in value or write-ups, write-downs or write-offs with respect to such
Investment.
"Investment Grade Rating" means a rating for a Person's senior long-term
unsecured debt of BBB- or better from S&P, a rating of Baa3 or better from
Moody's, or a rating equivalent to the foregoing from another Rating Agency.
"Invitation for Money Market Quotes" has the meaning set forth in Section
2.1(c).
"Issuing Bank" means JPMorgan Chase Bank, or with the consent of the
Borrower and the Lead Agent, another Bank.
"Lead Agent" means JPMorgan Chase Bank in its capacity as Lead Agent for
the Banks hereunder, and its successors in such capacity.
"Letter of Credit" means any Commercial Letter of Credit or Standby
Letter of Credit.
17
"Letter of Credit Fee" has the meaning set forth in Section 2.7.
"Letter of Credit Obligations" means, at any particular time, the sum of
(i) all outstanding Reimbursement Obligations, and (ii) the aggregate undrawn
face amount of all outstanding Letters of Credit, and (iii) the aggregate face
amount of all Letters of Credit requested by the Borrower but not yet issued.
"Letter of Credit Reimbursement Agreement" means, with respect to a Letter
of Credit, such form of application therefor and form of reimbursement agreement
therefor (whether in a single or several documents, taken together) as an
Issuing Bank may employ in the ordinary course of business for its own account,
with such modifications thereto as may be agreed upon by such Issuing Bank and
the Borrower and as are not materially adverse (in the judgment of such Issuing
Bank and the Lead Agent) to the interests of the Banks; provided, however, in
the event of any conflict between the terms of any Letter of Credit
Reimbursement Agreement and the terms of this Agreement, the terms of this
Agreement shall control.
"LIBOR Auction" means a solicitation of Money Market Quotes setting forth
Money Market Margins based on the London Interbank Offered Rate pursuant to
Section 2.1(c).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
negative pledge, charge, security interest or encumbrance of any kind, or any
other type of preferential arrangement that has the practical effect of creating
a security interest, in respect of such asset. For the purposes of this
Agreement, each of the Consolidated Businesses shall be deemed to own subject to
a Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan, a Committed Loan, a
Swing Loan or a Money Market Loan, and "Loans" means Base Rate Loans,
Euro-Dollar Loans, Committed Loans, Swing Loans or Money Market Loans, or, in
either case, any combination of the foregoing.
"Loan Documents" means this Agreement, the Notes, the Guaranties and any
related documents.
"London Interbank Offered Rate" has the meaning set forth in Section
2.6(c).
18
"Mandatory Prepayment Event" has the meaning set forth in Section 2.9.
"Margin Stock" shall have the meaning provided such term in Regulation U
of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect upon (i) the
business, operations, properties or assets of the Borrower or a Guarantor or
(ii) the ability of the Borrower or a Guarantor to perform its obligations
hereunder or under its respective Guaranty in all material respects, including
to pay interest and principal.
"Material Plan" means at any time a Plan having aggregate Unfunded
Liabilities in excess of $5,000,000.
"Material of Environmental Concern" means and includes pollutants,
contaminants, hazardous wastes, and hazardous substances, including petroleum,
its derivatives, by-products and other hydrocarbons.
"Maturity Date" has the meaning set forth in Section 2.8.
"Maximum Facility Amount" means from time to time the lesser of (i) the
aggregate of all Commitments, as such Commitments may be reduced at the
Borrower's option pursuant to Section 2.10 hereof, and (ii) Three Hundred
Million Dollars ($300,000,000), subject to adjustment in accordance with the
provisions of Section 9.14 hereof.
"Minority Holdings" means partnerships, limited liability companies and
corporations, equity interests in which are held or owned by the Borrower or a
Guarantor, which are not consolidated with the Borrower or such Guarantor on
their consolidated financial statements.
"Money Market Absolute Rate" has the meaning set forth in Section 2.1(c).
"Money Market Absolute Rate Loan" means a loan made or to be made by a
Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic Lending
Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Lead Agent; provided that any Bank may from time to time by notice to
the Borrower and the Lead Agent designate separate Money Market Lending Offices
for its Money Market LIBOR Loans, on the one hand,
19
and its Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan made or to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the Base
Rate pursuant to Section 2.1(c)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.1(c).
"Money Market Quote" means an offer by a Bank to make a Money Market Loan
in accordance with Section 2.1(c).
"Money Market Quote Request" has the meaning set forth in Section 2.1(c).
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five (5) plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five (5) year period.
"Net Offering Proceeds" means all cash or other assets received by any of
the Consolidated Businesses after the date hereof as a result of the sale of
common shares of beneficial interest, preferred shares of beneficial interest,
partnership interests, limited liability company interests, or other ownership
or equity interests in any of the Consolidated Businesses (or evidence of
indebtedness of any of the Consolidated Businesses convertible into any of the
foregoing) less customary costs and discounts of issuance paid by any of the
Consolidated Businesses, as the case may be.
"Net Operating Income" means, as of any date of determination with respect
to any Real Property Asset, Property Income for the previous four (4)
consecutive quarters (unless otherwise herein provided), including the quarter
then ended, but less Property Expenses for the previous four (4) consecutive
quarters (unless otherwise herein provided), including the
20
quarter then ended; provided, however, that if the date of determination is less
than sixty (60) days after the last day of the preceding quarter and the
Borrower has not submitted to the Lead Agent the reports required under Section
5.1(a) or 5.1(b) hereof (as applicable) for such preceding quarter, then, in
determining Net Operating Income, Property Income and Property Expenses for the
immediately preceding quarter shall not be included and Net Operating Income
shall be determined from Property Income and Property Expenses for the four (4)
quarters prior to such immediately preceding quarter.
"New Acquisitions" has the meaning set forth in Section 5.14.
"Non-Recourse Debt" means Debt of the Consolidated Businesses for which
the right of recovery of the obligee thereof is limited to recourse against the
Real Property Assets securing such Debt (subject to such limited exceptions to
the non-recourse nature of such Debt such as fraud, misappropriation,
misapplication and environmental indemnities, as are usual and customary in like
transactions at the time of the incurrence of such Debt).
"Notes" means, collectively, the promissory notes of the Borrower,
substantially in the form of Exhibit A hereto with respect to the Swing Lender,
the Designated Lenders and any other Bank, evidencing the obligation of the
Borrower to repay the Loans, and "Note" means any one of such promissory notes
issued hereunder.
"Notice of Borrowing" means a "Notice of Committed Borrowing" (as defined
in Section 2.2), a "Notice of Swing Borrowing" (as defined in Section 2.2) or a
"Notice of Money Market Borrowing" (as defined in Section 2.1(c)).
"Notice of Interest Rate Election" has the meaning set forth in Section
2.14(a).
"Obligations" means all obligations, liabilities and indebtedness of every
nature of the Borrower and the Guarantors, from time to time owing to any Bank
or all Banks, as the case may be, under or in connection with this Agreement or
any other Loan Document, including, without limitation, (i) the outstanding
principal amount of the Committed Loans and Swing Loans at such time, plus (ii)
the outstanding principal amount of any Money Market Loans at such time, plus
(iii) the Reimbursement Obligations.
"Outstanding Balance" means the aggregate outstanding and unpaid principal
balance of all Loans and Letter of Credit Obligations.
21
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning get forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means: (a) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds, completion bonds,
government contracts or other obligations of a like nature, including Liens in
connection with workers, compensation, unemployment insurance and other types of
statutory obligations or to secure the performance of tenders, bids, leases,
contracts (other than for the repayment of Debt) and other similar obligations
incurred in the ordinary course of business; (b) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided, that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor; (c)
Liens on property of the Borrower, a Guarantor or any Subsidiary thereof in
favor of the Federal or any state government to secure certain payments pursuant
to any contract, statute or regulation (other than Liens arising from any
Environmental Claim); (d) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights of way, covenants, consents,
reservations, encroachments, variations and zoning and other restrictions,
charges or encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower, a
Guarantor or any Subsidiary thereof and which do not materially detract from the
value of the property to which they attach or materially impair the use thereof
by the Borrower, such Guarantor or any Subsidiary thereof; (e) nonconsensual
Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or
other Liens imposed by law and arising in the ordinary course of business, for
sums not then due and payable (or which, if due and payable, are being contested
in good faith and with respect to which adequate reserves are being maintained
to the extent required by GAAP); (f) Liens (other than Liens securing Debt for
borrowed money) not otherwise permitted by this definition and incurred in the
ordinary course of business of any or all of the Borrower, the Guarantors or any
Subsidiary thereof with respect to obligations which do not exceed $1,000,000 in
principal amount in the aggregate at any one time outstanding; (g) the interests
of lessees and lessors under leases of real or personal property made in the
ordinary course of business which would not reasonably be expected to have a
Material Adverse Effect; (h) to the extent
22
required under the Bridge Loan Agreement, liens on the stock or other membership
interests of Cabot Trust and CalWest to secure the Bridge Loan; and (i) the
negative pledge set forth in Section 6.1 of the Bridge Loan Agreement, if then
effective, so long as the Consolidated Businesses have also granted such
negative pledge to the Banks as provided in Section 5.16(b) hereof.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five (5) years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any Person
which was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by JPMorgan
Chase Bank in New York City from time to time as its prime rate.
"Property Expenses" means, when used with respect to any Real Property
Asset, the costs of maintaining such Real Property Asset which are the
responsibility of the owner thereof and that are not paid directly by any tenant
thereof, including, without limitation, expenses for taxes, insurance,
management, repairs and maintenance, provided that if such tenant is more than
sixty (60) days in arrears in the payment of base or fixed rent, then any such
costs payable by such tenant will also constitute "Property Expenses", but
excluding depreciation, amortization and interest costs. Notwithstanding the
foregoing, in determining Property Expenses, management fees shall be deemed to
be equal to the greater of (i) the actual management fees payable with respect
to the Real Property Assets and (ii) management fees in an amount equal to 1.75%
of Property Income for the period in question.
"Property Income" means, when used with respect to any Real Property
Asset, cash rents and other cash revenues received in the ordinary course
therefrom, including, without limitation, revenues from any parking leases,
proceeds of rental loss insurance (amortized over the period to which such
proceeds relate if received as a lump-sum payment), and lease termination fees
amortized in a monthly amount equal to the gross rent
23
payable under the applicable lease over a period equal to the shorter of (a) the
period from the date of receipt until the date such funds are fully amortized
and (b) the period from the date of receipt until the date that the space under
the applicable lease is re-leased and the tenant thereunder is paying rent, with
any unamortized funds remaining at the end of such period immediately becoming
Property Income, but excluding prepaid rents and revenues and security deposits,
except to the extent applied in satisfaction of tenants' obligations for rent.
"Rating Agencies" means, collectively, S&P, Xxxxx'x and Fitch
Investors Services, Inc., or any successor to the foregoing.
"Real Property Assets" means, as of any time, the real property assets
owned directly or indirectly by the Borrower or a Guarantor at such time.
"Recourse Debt" shall mean Debt of the Consolidated Businesses that is not
Non-Recourse Debt.
"Refunded Swing Loan" has the meaning set forth in Section 2.1(b).
"Regulation U" means Regulation U of the Federal Reserve Board, as in
effect from time to time.
"Reimbursement Date" has the meaning set forth in
Section 2A.1(d)(i)(A).
"Reimbursement Obligations" means the aggregate non-contingent
reimbursement or repayment obligations of the Borrower with respect to amounts
drawn under Letters of Credit.
"Release" means any release, spill, emission, leaking, pumping, pouring,
dumping, emptying, deposit, discharge, leaching or migration.
"Required Banks" means, at any time, Banks having more than 66 2/3% of the
aggregate amount of the Commitments (provided that, in the event any of the
Banks shall have failed to fund its pro rata share of any Loan requested by the
Borrower which such Bank is obligated to fund under the terms of this Agreement
and any such failure has not been cured as provided in Section 2.3, then for so
long as such failure continues, "Required Banks" means Banks (excluding all
Banks whose failure to fund their respective pro rata shares of such Loans have
not been so cured) having Commitments representing more than 66 2/3% of the sum
of the total Commitments of such Banks at such time); or, if the Commitments
shall have
24
been terminated, Banks holding Notes evidencing more than 66 2/3% of the
aggregate unpaid principal amount of the Loans.
"Required Occupancy Level" means, with respect to any Unencumbered Asset
Pool Property, that no less than an average of 85% of the rentable square feet
of such Unencumbered Asset Pool Property is occupied by tenants pursuant to
written leases for which no material default has occurred beyond any applicable
notice and cure periods.
"Requirements" means all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, injunctions, rules, regulations and
requirements of every Governmental Authority having jurisdiction over any Real
Property Asset and all restrictive covenants applicable to any Real Property
Asset.
"Secured Debt" means Debt of a Person which is secured by a Lien.
"Securities" means any stock, shares, voting trust certificates,
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Separate Parcel" means a Real Property Asset that is a single, legally
subdivided, separately zoned parcel that can be legally transferred or conveyed
separate and distinct from any other Real Estate Asset without benefit of any
other Real Estate Asset.
"Solvent" means, with respect to any Person, that the fair saleable value
of such Person's assets exceeds the Debts of such Person.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"Standby Letter of Credit" means any letter of credit issued by an Issuing
Bank pursuant to Section 2A.1 for the account of the Borrower, which is not a
Commercial Letter of Credit.
25
"Subsequent Additional Commitment Amount" has the meaning set forth in
Section 9.14(a).
"Subsequent Additional Commitment Notice" has the meaning set forth in
Section 9.14(a).
"Subsequent Additional Commitments" has the meaning set forth in Section
9.14(a).
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests representing either (i) ordinary voting power to elect
a majority of the board of directors or other persons performing similar
functions or (ii) a majority of the economic interest therein, are at the time
directly or indirectly owned by the Borrower or the Guarantors, as applicable.
"Subsidiary Guarantors" means those Subsidiaries listed on Schedule G
hereto and those additional Subsidiaries that may hereafter become parties to
the Guaranty pursuant to Section 5.20(a) or otherwise, but in any event
excluding the CMBS Borrowers.
"Subsidiary Guaranty" means that certain Guaranty of Payment, dated as of
the date hereof, made by the Subsidiary Guarantors to and in favor of the Lead
Agent, for the benefit of the Banks, in the form of Exhibit G hereto, as the
same may from time to time hereafter be modified, supplemented or amended.
"Swing Lender" means JPMorgan Chase Bank, in its capacity as the Swing
Lender under the Swing Loan facility described in Section 2.1(b), and its
successors in such capacity.
"Swing Loan" means a Loan made by the Swing Lender pursuant to Section
2.1(b).
"Swing Loan Commitment" means the lesser of (a) $15,000,000 and (b) the
aggregate amount of the unused Commitments, as such amount may be reduced from
time to time pursuant to Section 2.10.
"Swing Loan Refund Amount" has the meaning set forth in Section
2.1(b)(ii).
"Syndication Expiration Date" has the meaning set forth in Section 9.14(a)
hereof.
"Tangible FMV" means the sum of:
26
(t) with respect to Real Property Assets owned by any of the
Consolidated Businesses for a period of at least four (4) calendar quarters, the
quotient of Net Operating Income with respect to Real Property Assets (and the
Consolidated Businesses' pro rata share of net operating income from the real
property assets of any Minority Holdings of Consolidated Businesses) determined
as of the last day of the previous calendar quarter for the previous four (4)
consecutive quarters, less replacement reserves of $.20 per square foot per
annum for each Real Property Asset (and the Consolidated Businesses' pro rata
share of replacement reserves for the real property assets of any Minority
Holdings of the Consolidated Businesses), divided by the FMV Cap Rate, and
(u) with respect to Real Property Assets owned by any of the
Consolidated Businesses for a period of less than four (4) calendar quarters and
more than one (1) calendar quarter, the lesser of (i) the quotient of Net
Operating Income with respect to Real Property Assets (and the Consolidated
Businesses' pro rata share of net operating income from the real property assets
of any Minority Holdings of the Consolidated Businesses) determined as of the
last day of the previous calendar quarter, on an annualized basis, less
replacement reserves of $.20 per square foot per annum for each Real Property
Asset (and the Consolidated Businesses' pro rata share of replacement reserves
for the Real Property Assets of any Minority Holdings of the Consolidated
Businesses), divided by the FMV Cap Rate, and (ii) the purchase price actually
paid by the applicable Consolidated Businesses for such Real Property Assets
(and the Consolidated Businesses' pro rata share of the purchase price actually
paid for the real property assets of any Minority Holdings of the Consolidated
Businesses), and
(v) with respect to Real Property Assets owned by any of the
Consolidated Businesses for a period of less than one (1) calendar quarter, the
purchase price actually paid by the applicable Consolidated Businesses for such
Real Property Assets (and the Consolidated Businesses' pro rata share of the
purchase price actually paid for the real property assets of any Minority
Holdings of Consolidated Businesses), and
(w) with respect to Real Property Assets on which construction has
commenced or is scheduled to commence within three (3) months, but with respect
to which no certificate of occupancy has been obtained, that are owned by the
Consolidated Businesses, the actual cost basis to the Consolidated Businesses of
such Real Property Assets (and the Consolidated Businesses' pro rata share of
the actual cost basis for the real property assets of any Minority Holdings of
Consolidated Businesses), and
27
(x) the book value of Unimproved Land not included within clause
(w) of this definition, which book value shall be limited to five percent (5%)
of Tangible FMV, and
(y) with respect to any guaranty by CalWest of the obligations of
CalSmart, LLC in connection with the financing of certain assets of CalSmart,
LLC for which CalWest has the unconditional entitlement to receive the assets
subject to such financing if CalWest makes payment on such guaranty pursuant to
documentation reasonably satisfactory to the Lead Agent (the "CalSmart
Guaranties"), the lesser of (i) the amount of the obligations covered by the
CalSmart Guaranties and (ii) the book value of the assets subject to such
financing, which amount or book value shall be limited to five percent (5%) of
Tangible FMV, and
(z) Cash or Cash Equivalents of the Consolidated Businesses as of
the date of determination, excluding Cash or Cash Equivalents received as lease
termination payments to the extent the same are recognized and included as
Property Income.
"Target Facility Amount" has the meaning set forth in Section 9.14(a)
hereof.
"Term" has the meaning set forth in Section 2.8.
"Title Company" means a title insurance company of recognized national
standing.
"Total Debt Ratio" means the ratio, as of the date of determination, of
(i) the sum of (x) the aggregate Debt of the Consolidated Businesses and (y) the
Consolidated Businesses' pro rata share of the Debt of any Minority Holdings of
the Consolidated Businesses, without duplication, to (ii) the Tangible FMV of
the Consolidated Businesses.
"Total Debt Service" shall mean, as of the last day of each calendar
quarter, an amount equal to the sum of (i) all interest (whether accrued, paid
or capitalized) actually payable by the Consolidated Businesses on their
respective Debt for the previous four (4) consecutive quarters (other then
capitalized interest actually paid from a reserve fund established for such
purpose in connection with such Debt), including the quarter then ended, plus
(ii) scheduled payments of principal on such Debt, whether or not paid by the
Consolidated Businesses (excluding balloon or similar payments), for the
previous four (4) consecutive quarters, including the quarter then ended.
28
"Total Fixed Charges" shall mean, as of the last day of each calendar
quarter, the sum of (i) Total Debt Service, (ii) Capital Expenditures made by
the Consolidated Businesses during the previous four consecutive quarters
(including the quarter then ended) and (iii) dividends and distributions paid or
made by the Consolidated Businesses on their respective preferred equity
interests during the previous four consecutive quarters (including the quarter
then ended).
"Treasury Rate" means, as of any date, a rate equal to the annual yield to
maturity on the U.S. Treasury Constant Maturity Series with a ten (10) year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
-- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the Lead Agent
shall select, in its reasonable discretion, an alternate basis for the
determination of Treasury yield for U.S. Treasury Constant Maturity Series with
ten (10) year maturities.
"Unencumbered Asset Pool Net Operating Cash Flow" means, as of any date of
determination with respect to the Unencumbered Asset Pool Properties as of such
date of determination, Property Income with respect to the Unencumbered Asset
Pool Properties for the previous four (4) consecutive quarters (except as
provided below), including the quarter then ended, but less (x) Property
Expenses with respect to the Unencumbered Asset Pool Properties for the previous
four (4) consecutive quarters (except as provided below), including the quarter
then ended, and (y) Capital Expenditures on Unencumbered Asset Pool Properties
for the previous four (4) consecutive quarters, including the quarter then
ended; provided, however, that if the date of determination is less than sixty
(60) days after the last day of the preceding quarter and the Borrower has not
submitted to the Lead Agent the reports required under Section 5.1(a) or 5.1(b)
hereof (as applicable) for such preceding quarter, then, in determining
Unencumbered Asset Pool Net Operating Cash Flow, the Property Income, Property
Expenses and Capital Expenditures for the immediately preceding quarter shall
not be included, and Unencumbered Asset Pool Net Operating Cash Flow shall be
determined from Property Income, Property Expenses and Capital Expenditures for
the four (4) quarters prior to such immediately preceding quarter.
"Unencumbered Asset Pool Properties" means, as of any date of
determination, any income-producing Real Property Asset listed on Schedule U
attached hereto and made a part hereof, as updated by the Borrower from time to
time, and which (a) is an industrial property located in the United
29
States which has been improved with a building for which a certificate of
occupancy has been issued (where available) or which is otherwise being lawfully
occupied for its intended uses, (b) is 100% owned in fee (or leasehold under a
mortgageable ground lease having a remaining term of at least thirty (30) years)
by the Borrower or a Guarantor, (c) is not subject to any Lien (other than
Permitted Liens) and (d) has not been subject to an event or occurrence which
would have a Material Adverse Effect.
"Unencumbered Asset Pool Properties Value" means, as of any date of
determination, the sum of:
(i) with respect to the Unencumbered Asset Pool Properties owned
by the Borrower or a Guarantor as of such date of determination for a period of
at least four (4) calendar quarters, the quotient of (x) Net Operating Income
with respect to the Unencumbered Asset Pool Properties less replacement reserves
of $.20 per square foot per annum for each such Unencumbered Asset Pool Property
and (y) the FMV Cap Rate,
(ii) with respect to Unencumbered Asset Pool Properties owned by
the Borrower or a Guarantor as of such date of determination for a period of
less than four (4) calendar quarters and more than one (1) calendar quarter the
lesser of (A) the quotient of (x) Net Operating Income with respect to the
Unencumbered Asset Pool Properties on an annualized basis based upon Net
Operating Income for the period of such Person's ownership of the Unencumbered
Asset Pool Property in question less replacement reserves of $.20 per square
foot per annum for each such Unencumbered Asset Pool Property and (y) the FMV
Cap Rate and (B) the purchase price actually paid by the Borrower or such
Guarantor (as applicable) for such Unencumbered Asset Pool Property, and
(iii) with respect to Unencumbered Asset Pool Properties owned by
the Borrower or a Guarantor as of such date of determination for a period of
less than one (1) calendar quarter, the purchase price actually paid by the
Borrower or a Guarantor (as applicable) for such Unencumbered Asset Pool
Property.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only
30
to the extent that such excess represents a potential liability of a member of
the ERISA Group to the PBGC or any other Person under Title IV of ERISA.
"Unimproved Land" means real property consisting of raw land which is
unimproved by buildings and does not generate any rental income or other income
for the owner thereof.
"United States" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
"Unsecured Debt" means all Debt which is not secured by a Lien.
"Unsecured Debt Ratio" means, as of any date of determination, the ratio
(expressed as a percentage) of the aggregate amount of Unsecured Debt of the
Consolidated Businesses outstanding as of such date of determination to the
Unencumbered Asset Pool Properties Value as of such date of determination.
"Unsecured Interest Expense" means the higher of (a) all interest (whether
accrued, paid or capitalized) actually payable by the Consolidated Businesses on
their respective Unsecured Debt for the previous four (4) consecutive quarters
(other then capitalized interest actually paid from a reserve fund established
for such purpose in connection with such Debt), including the quarter then
ended, and (b) interest payable on the average outstanding principal amount of
Unsecured Debt during the previous four (4) consecutive quarters, including the
quarter then ended, using an interest rate equal to the greater of (i) seven
percent (7%) and (ii) the actual rate of interest in effect with respect to such
Outstanding Balance as of the last day of such quarter.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP,
applied on a basis consistent (except for changes with which the Borrower's
independent public accountants concur) with the most recent audited consolidated
financial statements of the Borrower delivered to the Lead Agent and the Banks;
provided that, if the Borrower notifies the Lead Agent and the Banks that the
Borrower wishes to amend any covenant in Article V to eliminate the effect of
any change in GAAP on the operation of such covenant (or if the Lead Agent
notifies the Borrower that the Required Banks wish to amend Article V for such
purpose), then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP in
31
effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Banks.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II (including any Swing Loan made solely by the Swing Lender) on a
single date and for a single Interest Period. Borrowings are classified for
purposes of this Agreement (i) by reference to the pricing of Loans comprising
such Borrowing (e.g., a "Euro-Dollar Borrowing" or a "Base Rate Borrowing") or
(ii) by reference to the provisions of Article II under which participation
therein is determined (e.g., a "Committed Borrowing" under Section 2.1(a), a
"Swing Borrowing" under Sections 2.1(b) and 2.3, or a "Money Market Borrowing"
under Section 2.1(c).
SECTION 1.4. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof' and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, and (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement.
32
ARTICLE II.
THE CREDITS
SECTION 2.1. Loans.
-----
(a) Committed Loans. Each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make Committed Loans to the Borrower
pursuant to this Section 2.1(a) from time to time during the Term in amounts
such that (i) the sum of the aggregate principal amount of the Committed Loans
by such Bank and the Letter of Credit Obligations owing to such Bank at any one
time outstanding shall not exceed the amount of its Commitment and (ii) the
Outstanding Balance shall not at any time exceed the Available Facility. Each
Committed Borrowing under this Section 2.1(a) shall be in an aggregate principal
amount of at least $2,000,000 for Euro-Dollar Loans and $1,000,000 for Base Rate
Loans and shall be made from the several Banks ratably in proportion to their
respective Commitments. Subject to the limitations set forth herein, any amounts
repaid may be reborrowed.
Notwithstanding anything to the contrary herein, the combined number of
Committed Borrowings and Swing Borrowings in any given thirty (30) day period
shall be limited to three (3), and there shall be no more than seven (7)
Euro-Dollar Borrowings outstanding at any one time pursuant to this Agreement.
(b) Swing Loans.
-----------
(i) Basic Terms. During the Term, the Swing Lender agrees, on the
terms and conditions set forth in this Agreement, to make loans to the
Borrower pursuant to this Section 2.1(b)(i) from time to time in amounts
such that (A) the aggregate principal amount of Swing Loans does not at
any time exceed the Swing Loan Commitment, and (B) the Outstanding Balance
does not exceed the Available Facility. Each Borrowing under this Section
2.1(b)(i) shall be in an aggregate principal amount of at least $2,000,000
(except that any such Borrowing may be in the aggregate available amount
of Swing Loans determined in accordance with the immediately preceding
sentence). Within the foregoing limits, the Borrower may borrow under this
Section 2.1(b)(i), repay or, to the extent permitted by Section 2.10,
prepay Swing Loans and reborrow at any time during the Term under this
Section 2.1(b)(i). Notwithstanding anything to the contrary contained
herein, the Swing Lender shall not without the consent of
33
the Required Banks make a Swing Loan after the occurrence and during the
continuance of an Event of Default.
(ii) Conversion of Swing Loans to Committed Loans. The Swing Lender
shall, on behalf of the Borrower (which hereby irrevocably directs the
Swing Lender to act on its behalf), on notice given by the Swing Lender no
later than 12:00 noon (New York City time), on the Domestic Business Day
on or immediately following the funding of any Swing Loan, request each
Bank to make, and each Bank hereby agrees to make, a Base Rate Loan, in an
amount (with respect to each Bank, its "Swing Loan Refund Amount") equal
to such Bank's ratable share of the aggregate Commitments with respect to
the aggregate principal amount of the Swing Loans (the "Refunded Swing
Loans") outstanding on the date of such notice, to repay the Swing Lender.
Unless any of the events described in clause (f) or (g) of Section 6.1
with respect to the Borrower shall have occurred and be continuing (in
which case the procedures of Section 2.1(b)(iii) shall apply), each Bank
shall make such Base Rate Loan available to the Lead Agent at its address
specified in or pursuant to Section 9.1 in immediately available funds,
not later than 1:00 P.M. (New York City time), on the Domestic Business
Day immediately following the date of such notice. The Lead Agent shall
pay the proceeds of such Base Rate Loans to the Swing Lender, which shall
immediately apply such proceeds to repay Refunded Swing Loans. Effective
on the day such Base Rate Loans are made, the portion of the Swing Loans
so paid shall no longer be outstanding as Swing Loans, shall no longer be
due as Swing Loans under the Note held by the Swing Lender, and shall be
due as Base Rate Loans under the respective Notes issued to the Banks
(including the Swing Lender) in accordance with their ratable share of the
aggregate Commitments. The Borrower authorizes the Swing Lender to charge
the Borrower's accounts with the Lead Agent (up to the amount available in
each such account) in order to immediately pay the amount of such Refunded
Swing Loans to the extent amounts received from the Banks are not
sufficient to repay in full such Refunded Swing Loans.
(iii) Purchase of Participations in Swing Loans. If, prior to the
time Loans would have otherwise been made pursuant to Section 2.1(b)(ii),
one of the events described in clause (f) or (g) of Section 6.1 with
respect to the Borrower shall have occurred and be continuing, each Bank
shall, on the date such Loans were to have been made pursuant to the
notice referred to in Section 2.1(b)(ii) (the "Refunding Date"), purchase
an undivided participating interest in the Swing
34
Loans in an amount equal to such Bank's Swing Loan Refund Amount. On the
Refunding Date, each Bank shall transfer to the Swing Lender, in
immediately available funds, such Bank's Swing Loan Refund Amount, and
upon receipt thereof the Swing Lender shall deliver to such Bank a Swing
Loan participation certificate dated the date of the Swing Lender's
receipt of such funds and in the Swing Loan Refund Amount of such Bank.
(iv) Payments on Participated Swing Loans. Whenever, at any time
after the Swing Lender has received from any Bank such Bank's Swing Loan
Refund Amount pursuant to Section 2.1(b)(iii), the Swing Lender receives
any payment on account of the Swing Loans in which the Banks have
purchased participations pursuant to Section 2.1(b)(iii), the Swing Lender
will promptly distribute to each such Bank its ratable share (determined
on the basis of the Swing Loan Refund Amounts of all of the Banks) of such
payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Bank's participating interest
was outstanding and funded); provided, however, that in the event that
such payment received by the Swing Lender is required to be returned, such
Bank will return to the Swing Lender any portion thereof previously
distributed to it by the Swing Lender.
(v) Obligations to Refund or Purchase Participations in Swing
Loans Absolute. Each Bank's obligation to transfer the amount of a Loan to
the Swing Lender as provided in Section 2.1(b)(ii) or to purchase a
participating interest pursuant to Section 2.1(b)(iii) shall be absolute
and unconditional and shall not be affected by any circumstance,
including, without limitation, (A) any setoff, counterclaim, recoupment,
defense or other right which such Bank, the Borrower or any other Person
may have against the Swing Lender or any other Person, other than the
Swing Lender's gross negligence or willful misconduct in connection with
making any such Swing Loan, (B) the occurrence or continuance of a Default
or an Event of Default or the termination or reduction of the Commitments,
(C) any adverse change in the condition (financial or otherwise) of the
Borrower or any other Person, (D) any breach of this Agreement by the
Borrower, any other Bank or any other Person, or (E) any other
circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
35
(c) Money Market Loans.
------------------
(i) The Money Market Option. In addition to Committed Loans
pursuant to Section 2.1(a) and Swing Loans pursuant to Section 2.1(b), the
Borrower may, as set forth in this Section 2.1(c), request the Banks at
any time or from time to time during the Term so long as the Applicable
Credit Rating from Xxxxx'x or S&P is an Investment Grade Rating to make
offers to make Money Market Loans to the Borrower, not to exceed (1) in
the aggregate for all Money Market Loans (after giving effect to any such
requested Loan), fifty percent (50%) of the Maximum Facility Amount and
(2) after giving effect to any such requested Loan, the Available Facility
less the Outstanding Balance (excluding any Loans or any portion thereof
to be repaid from the proceeds of such Money Market Loans). The Banks may,
but shall have no obligation to, make such offers and the Borrower may,
but shall have no obligation to, accept any such offers in the manner set
forth in this Section 2.1(c).
(ii) Money Market Quote Request. When the Borrower wishes to
request offers to make Money Market Loans under this Section 2.1(c), it
shall transmit to the Lead Agent by facsimile transmission a request for
Money Market Quotes substantially in the form of Exhibit C hereto (each, a
"Money Market Quote Request") so as to be received not later than 11:00
A.M. (New York City time) on (x) the fourth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR Auction
or (y) the Domestic Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction specifying:
(A) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction;
(B) the aggregate amount of such Borrowing, which shall be
$5,000,000 or a larger integral multiple of $500,000;
(C) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period;
(D) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Absolute Rate;
36
(E) whether a Bank may designate a Designated Lender in
connection with such Money Market Loan; and
(F) that no Default or Event of Default has occurred and is
continuing or would result therefrom.
The Borrower may request offers to make Money Market Loans for up to three
Interest Periods in a single Money Market Quote Request. No Money Market
Quote Request shall be given within five (5) Euro-Dollar Business Days (or
such other number of days as the Borrower and the Lead Agent may agree) of
any other Money Market Quote Request.
(iii) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, but no later than 1:00 p.m. (New York City
time) on (i) the fourth Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction, or (ii) the Domestic
Business Day next preceding the date of the proposed Borrowing, in the
case of an Absolute Rate Auction, the Lead Agent shall send to the Banks
by facsimile transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit D hereto (an "Invitation for Money
Market Quotes"), which shall constitute an invitation by the Borrower to
each Bank to submit Money Market Quotes offering to make the Money Market
Loans to which such Money Market Quote Request relates in accordance with
this Section.
(iv) Submission and Contents of Money Market Quotes.
----------------------------------------------
(A) Each Bank may submit a Money Market Quote containing an
offer or offers to make Money Market Loans in response to any
Invitation for Money Market Quotes. Each Money Market Quote must
comply with the requirements of this Section 2.1(c)(iv) and must be
submitted to the Lead Agent by facsimile transmission at its offices
specified in or pursuant to Section 9.1 not later than (x) 10:00 A.M.
(New York City time) on the third Euro-Dollar Business Day prior to
the proposed date of Borrowing, in the case of a LIBOR Auction or (y)
10:00 A.M. (New York City time) on the proposed date of Borrowing, in
the case of an Absolute Rate Auction; provided that Money Market
Quotes submitted by the Bank that is the Lead Agent (or any affiliate
of the Bank that is the Lead Agent) in its capacity as a Bank may be
submitted, and may only be submitted, if the Bank that is the Lead
Agent or such affiliate notifies the Borrower of the terms of the
offer or offers contained
37
therein not later than fifteen (15) minutes prior to the applicable
deadline for the other Banks. Subject to Articles III and VI hereof,
any Money Market Quote so made shall be irrevocable. If, and only if,
the Borrower elects in the applicable Money Market Quote Request to
permit the Banks to designate Designated Lenders to fund such Money
Market Loans, such Money Market Loans may be funded by such Bank's
Designated Lender (if any) as provided in Section 9.6(d) hereof;
provided, however, such Bank shall not be required to specify in its
Money Market Quote whether such Money Market Loans will be funded by
such Designated Lender.
(B) Each Money Market Quote shall be in substantially the
form of Exhibit E hereto and shall in any case specify:
(1) the proposed date of Borrowing;
(2) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
(w) may be greater than or less than the Commitment of the
quoting Bank, (x) must be $5,000,000 or a larger integral
multiple of $500,000, (y) may not exceed the principal amount
of Money Market Loans for which offers were requested and (z)
may be subject to an aggregate limitation as to the principal
amount of Money Market Loans for which offers being made by
such quoting Bank may be accepted;
(3) in the case of a LIBOR Auction, the margin above or
below the applicable London Interbank Offered Rate (the "Money
Market Margin") offered for each such Money Market Loan,
expressed as a percentage (specified to the nearest 1/10,000th
of 1%) to be added to or subtracted from the applicable London
Interbank Offered Rate;
(4) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%)
(the "Money Market Absolute Rate") offered for each such Money
Market Loan; and
(5) the identity of the quoting Bank.
38
A Money Market Quote may set forth up to five (5) separate offers by
the quoting Bank with respect to each Interest Period specified in
the related Invitation for Money Market Quotes.
(C) Any Money Market Quote shall be disregarded if it:
(1) is not substantially in conformity with Exhibit E
hereto or does not specify all of the information required by
Section 2.1(c)(iv)(B) above;
(2) other than as set forth in clause (z) of
Section 2.1(c)(iv)(B)(2) hereof, contains qualifying,
conditional or similar language;
(3) other than as set forth in clause (z) of Section
2.1(c)(iv)(B)(2) hereof, proposes terms other than or in
addition to those set forth in the applicable Invitation for
Money Market Quotes; or
(4) arrives after the time set forth in Section
2.1(c)(iv)(A) hereof.
(v) Notice to Borrower. The Lead Agent shall promptly notify the
Borrower with respect to each Money Market Quote submitted in accordance
with Section 2.1(c)(iv) hereof, of the terms of such Money Market Quote
and the identity of the Bank submitting such Money Market Quote. Any such
subsequent Money Market Quote shall be disregarded by the Lead Agent
unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote. The Lead Agent's notice
to the Borrower shall specify (A) the aggregate principal amount of Money
Market Loans for which Money Market Quotes have been received for each
Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for
which offers in any single Money Market Quote may be accepted.
(vi) Acceptance and Notice by Borrower. Not later than 12:00 noon
(New York City time) on (x) the third Euro-Dollar Business Day prior to
the proposed date of Borrowing, in the case of a LIBOR Auction or (y)
11:00 A.M. (New York City time) on the proposed date of Borrowing, in the
case of an Absolute Rate Auction (or, in either case,
39
such other time or date as the Borrower and the Lead Agent shall have
mutually agreed and shall have notified the Banks not later than the date
of the Money Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective), the Borrower shall
notify the Lead Agent of its acceptance or non-acceptance of the Money
Market Quotes specified in the Lead Agent's notice to the Borrower
pursuant to Section 2.1(c)(v) hereof. In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify (i) the
aggregate principal amount of offers for each Interest Period that are
accepted, (ii) the intended use for the proceeds of such Money Market
Borrowing, which shall be an Approved Use, and (iii) that no Default or
Event of Default has occurred and is continuing or would result therefrom.
The Borrower may accept any Money Market Quote in whole or in part;
provided that:
(A) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in
the related Money Market Quote Request;
(B) the principal amount of each Money Market Borrowing
must be $5,000,000 or a larger integral multiple of $500,000;
(C) acceptance of offers may only be made on the basis
of ascending Money Market Margins or Money Market Absolute
Rates, as the case may be; and
(D) the Borrower may not accept any Money Market Quote
that is described in Section 2.1(c)(iv)(C) or that otherwise
fails to comply with the requirements of this Agreement.
For the purposes of this Section 2.1(c), all Money
Market Loans made on the same date of Borrowing for the same
Interest Period shall constitute a single Borrowing.
(vii) Allocation by Lead Agent. If Money Market Quotes are made by
two or more Banks with the same Money Market Margins or Money Market
Absolute Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which such Money Market Quotes are
permitted to be accepted for the related Interest Period, the principal
amount of Money Market Loans in
40
respect of which such Money Market Quotes are accepted shall be allocated
by the Lead Agent among such Banks as nearly as possible (in integral
multiples of $500,000, as the Lead Agent may deem appropriate) in
proportion to the aggregate principal amounts of such Money Market Quotes.
Determinations by the Lead Agent of the amounts of Money Market Loans
shall be conclusive in the absence of manifest error.
(viii) Notification by Lead Agent. Upon receipt of a Notice of Money
Market Borrowing in accordance with Section 2.1(c)(vi) hereof, the Lead
Agent shall, on the date such Notice of Money Market Borrowing is received
by the Lead Agent, notify each Bank of the principal amount of the Money
Market Borrowing accepted by the Borrower and of such Bank's share (if
any) of such Money Market Borrowing and such Notice of Money Market
Borrowing shall not thereafter be revocable by the Borrower. Provided that
the Borrower elected in the applicable Money Market Quote Request to
permit the Banks to designate Designated Lenders to fund such Money Market
Loans, a Bank that is notified that it has been selected to make a Money
Market Loan may designate its Designated Lender (if any) to fund such
Money Market Loan on its behalf, as described in Section 9.6(d). Any
Designated Lender which funds a Money Market Loan shall on and after the
time of such funding become the obligee in respect of such Money Market
Loan and be entitled to receive payment thereof when due. No Bank shall be
relieved of its obligation to fund a Money Market Loan, and no Designated
Lender shall assume such obligation, prior to the time the applicable
Money Market Loan is funded.
SECTION 2.2. Notice of Committed Borrowing or Swing Borrowing. The
Borrower shall give the Lead Agent (A) notice (a "Notice of Committed
Borrowing") not later than 11:00 a.m. (New York City time) one (1) Domestic
Business Day before each Base Rate Borrowing or 2:00 p.m. (New York City time)
the third Euro-Dollar Business Day before each Euro-Dollar Borrowing, or (B)
notice (a "Notice of Swing Borrowing") not later than 12:00 noon (New York City
time) on the date of each Borrowing of a Swing Loan, in each case specifying:
(i) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Domestic Borrowing, or a Euro-Dollar Business Day in the case
of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
41
(iii) whether the Loans comprising such Borrowing are to be Base Rate
Loans, Swing Loans or Euro-Dollar Loans;
(iv) in the case of a Euro-Dollar Borrowing, the duration of the Interest
Period applicable thereto, subject to the provisions of the definition of
Interest Period;
(v) the intended use for the proceeds of such Borrowing, which shall
be an Approved Use; and
(vi) that no Default or Event of Default has occurred and is continuing or
would result therefrom.
No Swing Loan may be outstanding on the last Domestic Business Day of any
calendar month.
SECTION 2.3. Notice to Banks; Funding of Loans.
---------------------------------
(a) Upon receipt of a Notice of Committed Borrowing or Notice of Swing
Borrowing, the Lead Agent shall notify each Bank (or the Swing Lender, in the
case of a Notice of Swing Borrowing) on the same day as it receives such notice
of the contents thereof and of such Bank's share of such Borrowing and such
notice shall not thereafter be revocable by the Borrower.
(b) Not later than 1:00 p.m. (New York City time) on the date of each
Committed Borrowing or Swing Borrowing, each Bank (or, in the case of a Swing
Loan, the Swing Lender) shall make available its share of such Committed
Borrowing or Swing Borrowing, in Federal or other funds immediately available in
New York City, to the Lead Agent at its address referred to in Section 9.1. Not
later than 2:00 p.m. (New York City time) on the date of each Committed
Borrowing or Swing Borrowing, the Lead Agent will make the funds so received
from the Banks available to the Borrower at the Lead Agent's aforesaid address.
Upon any change in any of the Commitments in accordance herewith, there shall be
an automatic adjustment to such participations to reflect such changed shares.
(c) Unless the Lead Agent shall have received notice from a Bank prior to
the date of any Committed Borrowing that such Bank will not make available to
the Lead Agent such Bank's share of such Committed Borrowing, the Lead Agent may
assume that such Bank has made such share available to the Lead Agent on the
date of such Committed Borrowing in accordance with subsection (b) of this
Section 2.3 and the Lead Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Bank shall not have so
42
made such share available to the Lead Agent, such Bank and the Borrower jointly
and severally agree to repay to the Lead Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Lead Agent, at (i) in the case of the Borrower, a rate per annum
equal to the higher of the Federal Funds Rate or the interest rate applicable
thereto pursuant to Section 2.6 and (ii) in the case of such Bank, the Federal
Funds Rate. If such Bank shall repay to the Lead Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement as of the date of such Borrowing.
SECTION 2.4. Notes.
-----
(a) The Loans shall be evidenced by the Notes, each of which shall be
payable to the order of each Bank for the account of its Applicable Lending
Office in an amount equal to each such Bank's Commitment.
(b) Each Bank may, by notice to the Borrower and the Lead Agent, request
that its Loans of a particular type, including Swing Loans and Money Market
Loans, be evidenced by a separate Note in an amount equal to the aggregate
unpaid principal amount of such Loans. Each such Note shall be in substantially
the form of Exhibit A hereto with respect to the Swing Lender, Designated
Lenders and any other Bank, with appropriate modifications to reflect the fact
that it evidences solely Loans of the relevant type. Each reference in this
Agreement to the "Note" of such Bank shall be deemed to refer to and include any
or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.1(a), the Lead
Agent shall forward such Note to such Bank. Each Bank shall record the date,
amount, type and maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect thereto, and may, if
such Bank so elects in connection with any transfer or enforcement of its Note,
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to each such Loan then outstanding;
provided that the failure of any Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Notes. Each Bank is hereby irrevocably authorized by the Borrower so to
endorse its Note and to attach to and make a part of its Note a continuation of
any such schedule as and when required.
SECTION 2.5. Maturity of Loans. The Committed Loans and Swing Loans shall
mature, and the principal amount thereof and all other
43
Obligations shall be due and payable, and the Borrower promises to pay the same,
on the Maturity Date, unless sooner due and payable in accordance with the terms
hereof. Each Money Market Loan included in any Money Market Borrowing shall
mature, and the principal amount thereof shall be due and payable, and the
Borrower promises to pay the same, together with accrued interest thereon, on
the earlier to occur of (i) last day of the Interest Period applicable to such
Money Market Borrowing or (ii) the Maturity Date.
SECTION 2.6. Interest Rates.
--------------
(a) Subject to Section 2.6(e), each Base Rate Loan shall bear interest on
the outstanding principal amount thereof, for each day from the date such Loan
is made until it becomes due, at a rate per annum equal to the Base Rate for
such day. Such interest shall be payable for each Interest Period on the first
Domestic Business Day of each calendar quarter.
(b) Subject to Section 2.6(e), each Swing Loan shall bear interest on the
outstanding principal amount thereof at the rate applicable to Base Rate Loans.
Such interest shall be payable to the Lead Agent for the account of the Swing
Lender on the first Domestic Business Day of each calendar quarter.
(c) Subject to Section 2.6(e) and Section 8.1, each Euro-Dollar Loan
shall bear interest on the outstanding principal amount thereof, for each day
during the Interest Period applicable thereto, at a rate per annum equal to the
sum of the Applicable Margin for Euro-Dollar Loans for such day plus the
Adjusted London Interbank Offered Rate applicable to such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three (3) months, at intervals of three
(3) months after the first day thereof.
"Adjusted London Interbank Offered Rate" applicable to any Interest Period
means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/10,000th of 1%) by dividing (i) the applicable
London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve
Percentage.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Federal Reserve Board(or any successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in New York City
with deposits exceeding five billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Euro-
44
Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
"London Interbank Offered Rate" means, with respect to any Euro-Dollar
Borrowing for any Interest Period, the rate appearing on Page 3750 of the Dow
Xxxxx Market Service (or on any successor or substitute page of such Service, or
any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Lead Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the London
interbank market) at approximately 11:00 a.m., London time, two Euro-Dollar
Business Days prior to the commencement of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the "London
Interbank Offered Rate" with respect to such Euro-Dollar Borrowing for such
Interest Period shall be the rate at which dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period are offered by the principal
London office of the entity which is the Lead Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Euro-Dollar Business Days prior to the commencement of such Interest Period.
(d) Subject to Section 2.6(e) and Section 8.1, each Money Market LIBOR
Loan shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the sum of the
London Interbank Offered Rate for such Interest Period (determined in accordance
with Section 2.6(c) as if the related Money Market LIBOR Loan were a Euro-Dollar
Loan) plus (or minus) the Money Market Margin quoted by the Bank making such
Loan in accordance with Section 2.1(c). Subject to Section 2.6(e), each Money
Market Absolute Rate Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.1(c). Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than
ninety (90) days, at intervals of ninety (90) days after the first day thereof.
(e) In the event that, and for so long as, any Event of Default shall
have occurred and be continuing, the outstanding principal amount of the Loans
and, to the extent permitted by law, default interest in respect of all
45
Loans, shall bear interest at the annual rate of the sum of the Base Rate and
four percent (4%) and shall be payable upon demand.
(f) The Lead Agent shall determine each interest rate applicable to the
Loans hereunder (other than Money Market Loans). The Lead Agent shall give
prompt notice to the Borrower and the Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
SECTION 2.7. Fees.
----
(a) Facility Fee. During the Term, the Borrower shall pay to the Lead
Agent for the account of the Banks ratably in proportion to their respective
Commitments (whether or not utilized), a facility fee on the aggregate
Commitments in any given quarter at the respective percentages per annum (the
"Applicable Facility Fee") based upon the Applicable Credit Rating in accordance
with the following table:
-------------------------------------------------------------------------
Applicable Credit Rating Applicable Facility Fee (% per
annum)
-------------------------------------------------------------------------
A-/A3 (or better) 0.15%
-------------------------------------------------------------------------
BBB+/Baa1 0.15%
-------------------------------------------------------------------------
BBB/Baa2 0.20%
-------------------------------------------------------------------------
BBB-/Baa3 0.25%
-------------------------------------------------------------------------
Less than Investment Grade Rating or 0.30%
no rating
-------------------------------------------------------------------------
The facility fee shall be payable quarterly, in arrears, on the first Domestic
Business Day of each January, April, July, and October during the Term and any
extensions thereof. Any change in the Applicable Credit Rating causing it to
move into a different range on the table shall be effective immediately as of
the date on which any of the Rating Agencies announces a change in the
Applicable Credit Rating or the date on which CalWest has no Applicable Credit
Rating. In the event that CalWest receives two (2) Applicable Credit Ratings
that are not equivalent, the Applicable Facility Fee shall be determined based
on the lower of such two (2) Applicable Credit Ratings. In the event that
CalWest receives more than two (2) Applicable Credit Ratings and such Applicable
Credit Ratings are not equivalent, the Applicable Facility Fee shall be
determined by the lower of the two (2) highest Applicable Credit Ratings,
provided that each of such two (2) highest Applicable Credit Ratings shall be
Investment Grade Ratings and at least
46
one of which shall be an Investment Grade Rating from S&P or Xxxxx'x; provided
that if neither of the two (2) highest Applicable Credit Ratings were issued by
S&P or Xxxxx'x, the Applicable Facility Fee shall be determined by the higher of
the Applicable Credit Ratings from S&P or Xxxxx'x.
(b) Letter of Credit Fee. The Borrower shall pay a Letter of Credit
Fee as more particularly set forth in Section 2A.1(g) hereof.
(c) Other Fees. The Borrower shall pay to the Lead Agent for its
own account an administrative fee as set forth in the letter agreement dated as
of November 28, 2001 between the Borrower and the Lead Agent.
(d) Fees Non-Refundable. All fees set forth in this Section 2.7 shall be
deemed to have been earned on the date payment is due in accordance with the
provisions hereof and shall be nonrefundable. The obligation of the Borrower to
pay such fees in accordance with the provisions hereof shall be binding upon the
Borrower and shall inure to the benefit of the Lead Agent and the Banks
regardless of whether any Loans are actually made.
SECTION 2.8. Mandatory Termination.
(a) The term (the "Term") of the Commitments and the Swing Line
Commitment shall terminate and expire on February 5, 2005, subject, however, to
the provisions of Section 2.8(b) hereof (such date, as the same may be extended
pursuant to Section 2.8(b), the "Maturity Date"). All Obligations shall be paid
in full on the Maturity Date.
(b) The Borrower shall have one option (the "Extension Option") to extend
the Maturity Date, for an additional twelve (12) month period, upon the
following terms and conditions: (i) delivery by the Borrower of written notice
thereof to the Lead Agent (the "Extension Notice") on or before the date which
is no earlier than one hundred twenty (120) days and no later than sixty (60)
days prior to the current Maturity Date (which Extension Notice, the Lead Agent
shall promptly deliver to the Banks); (ii) no Default or Event of Default shall
have occurred and be continuing both on the date the Borrower delivers the
Extension Notice to the Lead Agent and on the first day of the extension period
(the "Extension Date"); (iii) each of the representations and warranties of the
Borrower contained in this Agreement (other than representations and warranties
which expressly speak as of a different date) shall be true and correct in all
material respects on and as of the Extension Date; and (iv) the Borrower shall
pay to the Lead Agent, for the account of the Banks, on the Extension Date, the
Extension Fee. The Borrower's delivery of the Extension Notice shall be
irrevocable.
47
SECTION 2.9. Mandatory Prepayment.
--------------------
(a) In the event that an Unencumbered Asset Pool Property is sold,
transferred, or encumbered with a Lien that is not a Permitted Lien, subject to
Sections 5.16 and 5.17 hereof, the Borrower shall, simultaneously with such
sale, transfer, or encumbering, prepay the Loans in an amount equal to 100% of
the net proceeds of such sale, transfer or financing, or, if less, such amount
as shall be required for the Borrower to remain in compliance with Section 5.8
of this Agreement. Notwithstanding the foregoing, a simultaneous like-kind
exchange under Section 1031 of the Internal Revenue Code will not be subject to
the provisions of this Section 2.9(a); provided, that (i) the exchanged property
has qualified as a New Acquisition, (ii) the exchanged property is not subject
to any Liens (other than Permitted Liens) and (iii) any "boot" associated
therewith shall be applied to prepayment of the Loans. Any failure to make a
required mandatory prepayment following a sale of or granting of a Lien which is
not a Permitted Lien on an Unencumbered Asset Pool Property in violation of this
Section 2.9 shall constitute an Event of Default.
(b) If, at any time, the Outstanding Balance shall exceed the Available
Facility, then the Borrower shall immediately prepay the Loans in an amount
equal to such excess. Notwithstanding the foregoing, if the Outstanding Balance
exceeds an amount equal to 55.0% of the Unencumbered Asset Pool Properties Value
as of the last day of any calendar quarter or the date of any New Acquisition
and no other Event of Default shall have occurred and be continuing, then the
Borrower shall, within thirty (30) days after the last day of the preceding
calendar quarter or the date of any New Acquisition resulting in such excess
(whichever is applicable), either (A) cause one (1) or more New Acquisitions
having Unencumbered Asset Pool Property Values sufficient to ensure the
Borrower's compliance with the requirements of this Agreement to be included as
Unencumbered Asset Pool Properties or (B) prepay the Loans in an amount equal to
100% of the amount by which the Outstanding Balance exceeds the Available
Facility.
(c) The Borrower shall make any prepayment pursuant to this Section 2.9
together with interest accrued to the date of such prepayment on the principal
amount so prepaid; provided that any prepayment pursuant to this Section 2.9
shall be applied (unless an Event of Default exists) as specified by the
Borrower or, otherwise, first to any Base Rate Loans then outstanding, then to
any Euro-Dollar Loans (starting with the shortest Interest Periods), and then to
Money Market Loans (subject to Section 2.10(f)). In connection with the
prepayment of a Euro-Dollar Loan prior to the last day of the Interest Period
applicable thereto, the Borrower shall also
48
pay any applicable expenses pursuant to Section 2.12. Each such prepayment shall
be applied to prepay ratably the Loans of the Banks. Amounts prepaid pursuant to
this Section 2.9 may not be reborrowed unless the Borrower shall be in
compliance with the covenants set forth in Section 5.8 both before and after
giving effect to any such Borrowing.
(d) Any event referred to in this Section 2.9 that results in a required
prepayment of the Loans pursuant to this Section 2.9 shall be referred to as a
"Mandatory Prepayment Event".
SECTION 2.10. Optional Prepayments; Cancellation of Commitments.
-------------------------------------------------
(a) The Borrower may, upon at least one (1) Domestic Business Day (or
same day, in the case of a Swing Loan) notice to the Lead Agent, prepay to the
Lead Agent, for the account of the Banks, any Base Rate Borrowing or Swing
Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least One Million Dollars ($1,000,000) or, if less, the
outstanding principal balance, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several
Banks included in such type of Borrowing.
(b) Except as provided in Section 8.2, the Borrower may not prepay all or
any portion of the principal amount of any Euro-Dollar Loan prior to the last
day of the Interest Period applicable thereto unless the Borrower shall also pay
any applicable expenses pursuant to Section 2.12. Any such prepayment shall be
upon at least three (3) Euro-Dollar Business Days' notice to the Lead Agent.
Each such optional prepayment shall be in the amounts set forth in Section
2.10(a) and shall be applied to prepay ratably the Loans of the Banks included
in such type of Borrowing. The time for the giving of notices under this Section
shall be the same as if such notices were given in connection with a Borrowing
pursuant to Section 2.2.
(c) The Borrower may at any time and from time to time cancel all or any
part of the Commitments or Swing Line Commitments in amounts aggregating at
least Five Million Dollars ($5,000,000) by the delivery to the Lead Agent, the
Banks and the Swing Lender of a notice of cancellation upon at least three (3)
Domestic Business Days' notice to Lead Agent, the Banks and the Swing Lender,
whereupon all or such portion of the Commitments shall terminate as to the Banks
pro rata on the date set forth in such notice of cancellation (or, in the case
of the Swing Line Commitment, all or such portion of the Swing Line Commitment
shall terminate as to the Swing Line Lender on the date set forth in such notice
of cancellation) and, if there are any Loans or Swing Loans then outstanding in
an aggregate amount which
49
exceeds the aggregate Commitments or Swing Line Commitment (after giving effect
to any such reduction), as applicable, the Borrower shall prepay to the Lead
Agent, for the account of the Banks or the Swing Lender, as applicable, all or
such portion of Loans or Swing Loans outstanding on such date in accordance with
the requirements of Sections 2.10(a) and (b). The Borrower shall be permitted to
designate in its notice of cancellation which Loans, if any, are to be prepaid.
(d) Upon receipt of a notice of prepayment or cancellation pursuant to
this Section, the Lead Agent shall promptly, and in any event within one (1)
Domestic Business Day, notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment or cancellation and such notice
shall not thereafter be revocable by the Borrower.
(e) Any amounts so prepaid pursuant to this Section 2.10 may be
reborrowed subject to the other terms of this Agreement. In the event that the
Borrower elects to cancel all or any portion of the Commitments pursuant to
Section 2.10(c) hereof, such amounts may not be reborrowed.
(f) The Borrower may not prepay any Money Market Loan pursuant to this
Section 2.10 except with the prior consent of the applicable Bank or Designated
Lender, as the case may be.
SECTION 2.11. General Provisions as to Payments.
---------------------------------
(a) The Borrower hereby agrees to pay when due, without setoff or
counterclaim, the principal amount of each Loan which is made to it and all
unpaid interest accrued thereon and all Reimbursement Obligations, in accordance
with the terms of this Agreement and the Notes. The Borrower shall make each
payment of principal of, and interest on, the Loans and Reimbursement
Obligations and of fees and other payments hereunder, not later than 12:00 Noon
(New York City time) on the date when due, in Federal or other funds immediately
available in New York City, to the Lead Agent at its address referred to in
Section 9.1. The Lead Agent will distribute to each Bank its ratable share of
each such payment received by the Lead Agent for the account of the Banks on the
same day as received by the Lead Agent if received by the Lead Agent by 2:00
p.m. (New York City time) or, if received by the Lead Agent after 2:00 p.m. (New
York City time), on the immediately following Domestic Business Day. Whenever
any payment of principal of, or interest on, the Base Rate Loans, the Money
Market Absolute Rate Loans, the Reimbursement Obligations or of fees shall be
due on a day which is not a Domestic Business Day, the date for payment thereof
shall be extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar Loans or the Money
Market LIBOR Loans
50
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Lead Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Lead Agent may assume that the
Borrower has made such payment in full to the Lead Agent on such date and the
Lead Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that the Borrower shall not have so made such payment, each
Bank shall repay to the Lead Agent forthwith on demand such amount distributed
to such Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to the Lead Agent, at the Federal Funds Rate.
SECTION 2.12. Funding Losses. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or Money Market LIBOR Loan
(pursuant to Article II, VI or VIII or otherwise) on any day other than the last
day of the Interest Period applicable thereto, or if the Borrower fails to
borrow, continue or convert to any Euro-Dollar Loans or Money Market LIBOR Loans
after notice has been given to any Bank in accordance with Section 2.3(a),
2.1(c)(vi) or 2.14, then the Borrower shall reimburse each Bank within fifteen
(15) days after demand for any resulting loss or expense incurred by it (or by
an existing Participant in the related Loan; provided that no Participant shall
be entitled to receive more than the Bank with respect to which such Participant
is a Participant would be entitled to receive under this Section 2.12). Such
loss or expense to any Bank shall include an amount determined by such Bank to
be the excess, if any, of (i) the amount of interest which would have accrued on
the principal amount of such Loan had such event not occurred, at the Adjusted
London Interbank Offered Rate that would have been applicable to such Loan, for
the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest (as reasonably determined by such Bank)
that would be realized by such Bank in reemploying the funds so paid, prepaid,
assigned, converted or not borrowed, continued or converted for such period or
Interest Period, as the case may be.
51
A certificate of any Bank setting forth any amount or amounts that such Bank is
entitled to receive pursuant to this Section shall be delivered to the Lead
Agent and shall be conclusive absent manifest error.
SECTION 2.13. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.14. Method of Electing Interest Rates.
---------------------------------
(a) The Loans included in each Borrowing shall bear interest initially at
the type of rate specified by the Borrower in the applicable Notice of
Borrowing. Thereafter, with respect to Committed Loans only, the Borrower may
from time to time elect to change or continue the type of interest rate borne by
such Loans (subject in each case to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day; and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period applicable
to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Lead Agent at least three (3) Euro-Dollar Business Days
before the conversion or continuation selected in such notice is to be effective
(unless the relevant Loans are to be continued as Base Rate Loans, in which case
such notice shall be delivered to the Lead Agent no later than 12:00 Noon (New
York City time) at least one (1) Domestic Business Day before such continuation
is to be effective). A Notice of Interest Rate Election may, if it so specifies,
apply to only a portion of the aggregate principal amount of the relevant Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Loans, (ii) the portion to which such notice applies, and the remaining
portion to which it does not apply, are each at least $2,000,000, (iii) there
shall be no more than seven (7) Euro-Dollar Borrowings outstanding at any time
under this Agreement, (iv) no
52
Loan may be continued as, or converted into, a Euro-Dollar Loan when any Event
of Default has occurred and is continuing, and (v) no Interest Period shall
extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if Loans are to be converted, the new type of Loans and, if
such new Loans are Euro-Dollar Loans, the duration of the initial Interest
Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the Borrower
pursuant to subsection (a) above, the Lead Agent shall notify each Bank on the
same day as it receives such Notice of Interest Rate Election of the contents
thereof and such notice shall not thereafter be revocable by the Borrower. If
the Borrower fails to deliver a timely Notice of Interest Rate Election to the
Lead Agent for any Loans that are Euro-Dollar Loans, such Loans shall be
converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto.
ARTICLE II.A.
LETTERS OF CREDIT
SECTION 2A.1. Letters of Credit. Subject to the terms and conditions set
forth in this Agreement, including, without limitation, Section 2A.1(c)(ii),
each Issuing Bank hereby severally agrees to issue for the account of the
Borrower one or more Letters of Credit, subject to the following provisions:
53
(a) Types and Amounts. An Issuing Bank shall not have any obligation
to issue, amend or extend, and shall not issue, amend or extend, any
Letter of Credit at any time:
(i) if the aggregate Letter of Credit Obligations with
respect to such Issuing Bank, after giving effect to the issuance,
amendment or extension of the Letter of Credit requested hereunder,
shall exceed any limit imposed by law or regulation upon such Issuing
Bank;
(ii) if, immediately after giving effect to the issuance,
amendment or extension of such Letter of Credit, (1) the Letter of
Credit Obligations at such time would exceed the lesser of
$45,000,000 or fifteen percent (15%) of the Maximum Facility Amount
or (2) the Outstanding Balance at such time would exceed the
Available Facility at such time, or (3) one or more of the conditions
precedent contained in Sections 3.1 and 3.2, as applicable, would not
on such date be satisfied, unless such conditions are thereafter
satisfied and written notice of such satisfaction is given to such
Issuing Bank by the Lead Agent (and such Issuing Bank shall not
otherwise be required to determine that, or take notice whether, the
conditions precedent set forth in Sections 3.1 and 3.2, as
applicable, have been satisfied); or
(iii) which has an expiration date later than the earlier of
(A) the date one (1) year after the date of issuance (without regard
to any automatic renewal provisions thereof) or (B) ten (10) Domestic
Business Days preceding the scheduled Maturity Date.
(b) Conditions. In addition to being subject to the satisfaction of
the conditions precedent contained in Sections 3.1 and 3.2, as applicable,
the obligation of an Issuing Bank to issue, amend or extend any Letter of
Credit is subject to the satisfaction in full of the following conditions:
(i) if the Issuing Bank so requests, the Borrower shall have
executed and delivered to such Issuing Bank and the Lead Agent a
Letter of Credit Reimbursement Agreement and such other documents and
materials as may be required pursuant to the terms thereof; and
54
(ii) the terms of the proposed Letter of Credit shall be
satisfactory to the Issuing Bank in its sole discretion.
(c) Issuance of Letters of Credit. (i) The Borrower shall give the
Lead Agent and the Issuing Bank written notice that it requires the
issuance a Letter of Credit not later than 11:00 a.m. (New York time) on
the third (3rd) Domestic Business Day preceding the requested date for
issuance thereof under this Agreement. Such notice shall be irrevocable
unless and until such request is denied by the applicable Issuing Bank and
shall specify (A) that the requested Letter of Credit is either a
Commercial Letter of Credit or a Standby Letter of Credit, (B) the stated
amount of the Letter of Credit requested, (C) the effective date (which
shall be a Domestic Business Day) of issuance of such Letter of Credit,
(D) the date on which such Letter of Credit is to expire (which shall be a
Domestic Business Day and no later than the earlier of (1) the date one
(1) year after the date of issuance (without regard to any automatic
renewal provisions thereof) and (2) ten (10) Domestic Business Days
preceding the scheduled Maturity Date), (E) the Person for whose benefit
such Letter of Credit is to be issued, (F) other relevant terms of such
Letter of Credit, (G) the amount by which the Available Facility exceeds
the Outstanding Balance at such time, and (H) the amount of the then
outstanding Letter of Credit Obligations. Such request shall be
accompanied by a certificate of an officer of the Borrower certifying that
no Default or Event of Default has occurred and is continuing.
Notwithstanding anything to the contrary contained herein, the applicable
Issuing Bank shall not, without the consent of the Required Banks, issue
or extend or increase the amount of any Letter of Credit after the
occurrence and during the continuance of an Event of Default.
(ii) The applicable Issuing Bank shall give the Lead Agent written
notice, or telephonic notice confirmed promptly thereafter in writing, of
the issuance, amendment or extension of a Letter of Credit (which notice
the Lead Agent shall promptly transmit by telegram, facsimile
transmission, or similar transmission to the Borrower and each Bank).
(d) Reimbursement Obligations; Duties of Issuing Bank and
other Banks; Funding of a Loan.
(i) Notwithstanding any provisions to the contrary in
any Letter of Credit Reimbursement Agreement:
55
(A) the Borrower shall reimburse each Issuing Bank for
amounts drawn under each of its Letters of Credit no later than
the date (the "Reimbursement Date") which is the earlier of (I)
the time specified in the applicable Letter of Credit
Reimbursement Agreement and (II) the date that such Issuing Bank
notifies the Borrower that payment has been made under such
Letter of Credit by such Issuing Bank; and
(B) all Reimbursement Obligations with respect to any
Letter of Credit shall bear interest at the rate applicable to
Base Rate Loans in accordance with Section 2.6(a) from the date
of the relevant drawing under such Letter of Credit until the
Reimbursement Date and thereafter at the rate applicable to Base
Rate Loans in accordance with Section 2.6(e).
(ii) Each Issuing Bank shall give the Lead Agent written
notice, or telephonic notice confirmed promptly thereafter in
writing, of all drawings under a Letter of Credit and the payment (or
the failure to pay when due) by the Borrower on account of a
Reimbursement Obligation (which notice the Lead Agent shall promptly
transmit by telegram, facsimile transmission or similar transmission
to each Bank).
(iii) Solely as between the Issuing Bank and the other Banks,
in determining whether to pay under any Letter of Credit, the Issuing
Bank shall have no obligation to the other Banks other than to
confirm that any documents required to be delivered under a
respective Letter of Credit appear to have been delivered and that
they appear on their face to comply with the requirements of such
Letter of Credit.
(iv) If any draft shall be presented or other demand for
payment shall be made under any Letter of Credit, the applicable
Issuing Bank shall notify the Lead Agent (and the Lead Agent shall
notify the Borrower and the Banks) of the date and amount of the
draft presented or demand for payment and of the date and time when
it expects to pay such draft or honor such demand for payment, and,
except as provided in this Section 2A.1(d)(iv), the Borrower shall
reimburse the applicable Issuing Bank, as set forth in Section
2A.1(d)(i) above. Notwithstanding anything contained in Section
2A.1(d)(i) above
56
or this Section 2A.1(d)(iv) to the contrary, however, unless the
Borrower shall have notified the Lead Agent and the applicable
Issuing Bank prior to 11:00 a.m. (New York time) on the Business Day
immediately prior to the date of such drawing that the Borrower
intends to reimburse the applicable Issuing Bank for the amount of
such drawing with funds other than the proceeds of Committed Loans,
the Borrower shall be deemed to have timely given a Notice of
Committed Borrowing pursuant to Section 2.2 to the Lead Agent,
requesting a Base Rate Loan on the date on which such drawing is
honored and in an amount equal to the amount of such drawing. Each
Bank shall, in accordance with Section 2.3(b), make available such
Bank's share of such Borrowing to the Lead Agent, the proceeds of
which shall be applied directly by the Lead Agent to reimburse the
applicable Issuing Bank for the amount of such draw. In the event
that any Bank fails to make available to the Lead Agent the amount of
such Bank's share of such Borrowing on the date of the drawing, the
Lead Agent shall be entitled to recover such amount on demand from
such Bank plus any additional amounts payable under Section 2.3(c) in
the event of a late funding by a Bank.
(e) Participations. (i) Immediately upon issuance by an Issuing Bank
of any Letter of Credit in accordance with the procedures set forth in
this Section 2A.1, each Bank shall be deemed to have irrevocably and
unconditionally purchased and received from that Issuing Bank, without
recourse or warranty, an undivided interest and participation in such
Letter of Credit to the extent of such Bank's share of the Maximum
Facility Amount, including, without limitation, all obligations of the
Borrower with respect thereto and any security therefor and guaranty
pertaining thereto.
(ii) If any Issuing Bank makes any payment under any Letter of
Credit and the Borrower does not repay such amount to that Issuing Bank on
the Reimbursement Date and a Base Rate Loan has not been made with respect
to such payment pursuant to Section 2A.1(d)(iv), that Issuing Bank shall
promptly notify the Lead Agent, which shall promptly notify each other
Bank, and each Bank shall promptly and unconditionally pay to the Lead
Agent for the account of such Issuing Bank, in immediately available
funds, the amount of such Bank's share of such payment (net of that
portion of such payment, if any, made by such Issuing Bank in its capacity
as an issuer of a Letter of Credit), and the Lead Agent shall promptly pay
to such Issuing Bank
57
such amounts received by it, and any other amounts received by the Lead
Agent for such Issuing Bank's account, pursuant to this Section 2A.1(e).
If a Bank does not make its share of the amount of such payment available
to the Lead Agent, such Bank agrees to pay to the Lead Agent for the
account of the Issuing Bank, forthwith on demand, such amount together
with interest thereon at the interest rate then applicable under Section
2.3(c) in the event of a late funding by a Bank. The failure of any Bank
to make available to the Lead Agent for the account of an Issuing Bank its
share of any such payment shall neither relieve any other Bank of its
obligation hereunder to make available to the Lead Agent for the account
of such Issuing Bank such other Bank's share of any payment on the date
such payment is to be made nor increase the obligation of any other Bank
to make such payment to the Lead Agent. Notwithstanding anything to the
contrary set forth herein, the aggregate amount to be paid by any Bank
with respect any drawing under a Letter of Credit (whether as a payment
pursuant to this Section 2A.1(e) or as a Committed Loan pursuant to
Section 2A.1(d)(iv)) shall not exceed its share of such drawing.
(iii) Whenever an Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, as to which the
Lead Agent has previously received payments from any other Bank for the
account of such Issuing Bank pursuant to this Section 2A.1(e), such
Issuing Bank shall promptly pay to the Lead Agent and the Lead Agent shall
promptly pay to each other Bank an amount equal to such other Bank's share
thereof. Each such payment shall be made by such reimbursed Issuing Bank
or the Lead Agent, as the case may be, on the Business Day on which such
Person receives the funds paid to such Person pursuant to the preceding
sentence, if received prior to 11:00 a.m. (New York time) on such Business
Day, and otherwise on the next succeeding Business Day.
(iv) Each Issuing Bank shall furnish to the Lead Agent (which shall
furnish to the Banks) copies of each Letter of Credit issued by such
Issuing Bank.
(v) The obligations of a Bank to make payments to the Lead Agent
for the account of any Issuing Bank with respect to a Letter of Credit
shall be irrevocable, shall not be subject to any qualification or
exception whatsoever except willful misconduct or gross negligence of such
Issuing Bank, and shall be honored in accordance with this Article II.A
(irrespective of the satisfaction of the conditions described
58
in Sections 3.1 and 3.2, as applicable) under all circumstances,
including, without limitation, any of the following circumstances:
(A) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(B) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a
beneficiary named in a Letter of Credit or any transferee of a
beneficiary named in a Letter of Credit (or any Person for
whom any such transferee may be acting), any Bank, or any
other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any
unrelated transactions (including any underlying transactions
between the account party and beneficiary named in any Letter
of Credit);
(C) any draft, certificate or any other document
presented under any Letter of Credit having been determined to
be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any
respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the
Loan Documents;
(E) any failure by that Issuing Bank to make any reports
required pursuant to Section 2A.1(h) or the inaccuracy of any
such report; or
(F) the occurrence of any Default or Event of Default.
(f) Payment of Reimbursement Obligations. (i) Unless such
Reimbursement Obligation is converted to a Committed Loan pursuant to
Section 2A.1(d)(iv), the Borrower unconditionally agrees to pay to each
Issuing Bank the amount of all Reimbursement Obligations, interest and
other amounts payable to such Issuing Bank under or in connection with the
Letters of Credit when such amounts are due and payable, irrespective of
any claim, setoff, defense or other right which the Borrower may have at
any time against any Issuing Bank or any other Person.
59
(ii) In the event any payment by the Borrower received by an Issuing
Bank with respect to a Letter of Credit and distributed by the Lead Agent
to the Banks on account of their participations is thereafter set aside,
avoided or recovered from such Issuing Bank in connection with any
receivership, liquidation or bankruptcy proceeding, each Bank which
received such distribution shall, upon demand by such Issuing Bank,
contribute such Bank's share of the amount set aside, avoided or recovered
together with interest at the rate required to be paid by such Issuing
Bank upon the amount required to be repaid by it.
(g) Letter of Credit Fee Charges. In connection with each Letter of
Credit, the Borrower hereby covenants to pay to the Lead Agent the
following fees each payable quarterly in arrears (on the first Business
Day of each calendar quarter following the issuance of each Letter of
Credit): (1) a fee for the account of the Banks, computed daily on the
amount of such Letter of Credit issued and outstanding at a rate per annum
equal to the "Banks' L/C Fee Rate" (as hereinafter defined) and (2) a fee,
for the Issuing Bank's own account, computed daily on the amount of such
Letter of Credit issued and outstanding at a rate per annum equal to
0.125%. For purposes of this Agreement, the "Banks' L/C Fee Rate" shall
mean, at any time, a rate per annum equal to the Applicable Margin for
Euro-Dollar Loans then in effect. In addition, the Borrower shall pay to
each Issuing Bank, solely for its own account, the standard charges
assessed by such Issuing Bank in connection with the issuance,
administration, amendment and payment or cancellation of Letters of Credit
and such compensation in respect of such Letters of Credit for the
Borrower's account as may be agreed upon by the Borrower and such Issuing
Bank in writing from time to time.
(h) Letter of Credit Reporting Requirement. Each Issuing Bank shall,
no later than the tenth (10th) Business Day following the last day of each
calendar quarter, provide to the Lead Agent (which shall promptly provide
to the Borrower and each other Bank) separate schedules for Commercial
Letters of Credit and Standby Letters of Credit issued by such Issuing
Bank, in form and substance reasonably satisfactory to the Lead Agent,
setting forth the aggregate Letter of Credit Obligations outstanding to it
at the end of each month and, to the extent not otherwise provided in
accordance with the provisions of Section 2A.1(c), any information
requested by the Lead Agent or the Borrower relating to the date of issue,
account party, amount,
60
expiration date and reference number of each Letter of Credit issued by
it.
(i) Indemnification; Exoneration. (i) In addition to all other
amounts payable to an Issuing Bank, the Lead Agent and each other Bank,
the Borrower hereby agrees to defend, indemnify, and save harmless the
Lead Agent, each Issuing Bank, and each other Bank from and against any
and all claims, demands, liabilities, penalties, damages, losses (other
than loss of profits), reasonable costs, reasonable charges and reasonable
expenses (including reasonable attorneys' fees but excluding taxes) which
the Lead Agent, the Issuing Banks, or such other Bank may incur or be
subject to as a consequence, direct or indirect, of (A) the issuance of
any Letter of Credit other than as a result of the gross negligence or
willful misconduct of the applicable Issuing Bank, as determined by a
court of competent jurisdiction, or (B) the failure of the applicable
Issuing Bank to honor a drawing under such Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.
(ii) As between the Borrower on the one hand and the Banks on the
other hand, the Borrower assumes all risks of the acts and omissions of,
or misuse of Letters of Credit by, the respective beneficiaries of the
Letters of Credit. In furtherance and not in limitation of the foregoing,
subject to the provisions of the Letter of Credit Reimbursement
Agreements, the Lead Agent, each Issuing Bank and the other Banks shall
not be responsible for, and the Borrower's obligations in respect of the
Letters of Credit shall not be affected by: (A) the form, validity,
legality, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of, or any drawing under, the Letters of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (B) the validity, legality or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (C) failure of the beneficiary of a Letter of
Credit to duly comply with conditions required in order to draw upon such
Letter of Credit (provided that the foregoing shall not be construed to
excuse the Issuing Bank from liability to the Borrower to the extent of
any direct damages (as opposed to consequential damages, claims in respect
of which are hereby waived by the Borrower to the extent permitted by
61
applicable law) suffered by the Borrower that are caused by the Issuing
Bank's failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply in all material
respects with the terms thereof, even if such drafts or other documents
subsequently prove to be invalid, fraudulent or forged; (D) errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph or otherwise, whether or not they be
in cipher; (E) errors in interpretation of technical terms; (F) any loss
or delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit or of the proceeds
thereof; (G) the misapplication by the beneficiary of a Letter of Credit
of the proceeds of any drawing under such Letter of Credit; and (H) any
consequences arising from causes beyond the control of the Lead Agent, the
Issuing Banks or the other Banks, other than any of the foregoing
resulting from the gross negligence or willful misconduct of the Issuing
Bank.
SECTION 2A.2. Obligations Several.
-------------------
The obligations of the Lead Agent, each Issuing Bank, and each other Bank
under this Article II.A are several and not joint, and no Issuing Bank or other
Bank shall be responsible for the obligation to issue Letters of Credit or
participation obligations hereunder, respectively, of any other Issuing Bank or
other Bank.
ARTICLE III.
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur on the date (the
"Closing Date") when each of the following conditions is satisfied (or waived by
the Lead Agent, such waiver to be evidenced by the funding of the Loans made, or
issuance of Letters of Credit, on the Closing Date), each document to be dated
the Closing Date unless otherwise indicated:
(a) the Borrower shall have executed and delivered to the Lead Agent a
Note for the account of each Bank dated on or before the Closing Date and
complying with the provisions of Section 2.4;
(b) the Borrower shall have executed and delivered to the Lead Agent a
duly executed original of this Agreement;
(c) each of the Guarantors shall have executed and delivered to the Lead
Agent a duly executed original of the applicable Guaranty;
62
(d) the Lead Agent shall have received an opinion of Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, counsel for the Borrower and the Guarantors, and opinions of
local counsel to the Guarantors, in each case acceptable to the Lead Agent, the
Banks and their counsel;
(e) the Lead Agent shall have received all documents the Lead Agent may
reasonably request relating to the existence of the Borrower and the Guarantors,
the authority for and the validity of this Agreement and the other Loan
Documents, and any other matters relevant hereto, all in form and substance
reasonably satisfactory to the Lead Agent. Such documentation shall include,
without limitation, the certificate of formation and operating agreement, the
articles of incorporation and bylaws or the partnership agreement and limited
partnership certificate, as applicable, of the Borrower and the Guarantors, as
amended, modified or supplemented to the Closing Date, each certified to be
true, correct and complete by a senior officer of the Borrower and the
Guarantors, as applicable, as of the Closing Date; together with a good standing
certificate from the Secretary of State (or the equivalent thereof) of the State
of Delaware with respect to the Borrower, the State of California with respect
to CalWest, the State of Maryland with respect to Cabot Trust and the State of
formation or organization of each of the Subsidiary Guarantors, respectively,
and a good standing certificate from the Secretary of State (or the equivalent
thereof) of each other State in which the Borrower or the Guarantors, as
applicable, owns an Unencumbered Asset Pool Property or is otherwise required to
be qualified to transact business (other than any such State in which the
failure to be so qualified would not reasonably be expected to have a Material
Adverse Effect), each to be dated not more than thirty (30) days prior to the
Closing Date;
(f) the Lead Agent shall have received all certificates, agreements and
other documents and papers referred to in this Section 3.1 and Section 3.2,
unless otherwise specified, in sufficient counterparts, satisfactory in form and
substance to the Lead Agent in its sole discretion;
(g) the Borrower and the Guarantors shall have taken all actions required
to authorize the execution and delivery of this Agreement and the other Loan
Documents to which each is a party and the performance thereof by the Borrower
and the Guarantors;
(h) the Lead Agent shall be satisfied that neither the Borrower nor any
Guarantor is subject to any present or contingent environmental liability which
would reasonably be expected to have a Material Adverse Effect;
(i) the Lead Agent shall have received an unaudited consolidated balance
sheet and income statement of each of the Borrower and CalWest for
63
the fiscal quarter ended September 30, 2001 together with a certificate from an
authorized financial officer of such Person or its manager or general partner
(X) certifying that no material adverse change has occurred in its financial
position since September 30, 2001, (Y) certifying that such Person is in
compliance on a pro forma basis with the covenants set forth in Section 5.8
hereof and (Z) providing financial projections and proformas for such Person;
(j) the Lead Agent shall have received wire transfer instructions in
connection with the Loans to be made on the Closing Date;
(k) the Lead Agent shall have received, for its and any other Bank's
account, all fees due and payable pursuant to Section 2.7 hereof on or before
the Closing Date, and the reasonable fees and expenses accrued through the
Closing Date of Xxxxxxx Xxxx LLP;
(l) the Lead Agent shall have received copies of all consents, licenses
and approvals, if any, required in connection with the execution, delivery and
performance by the Borrower and the Guarantors, and the validity and
enforceability against the Borrower and the Guarantors, of the Loan Documents to
which each is a party, or in connection with any of the transactions
contemplated thereby to occur on or prior to the Closing Date, and such
consents, licenses and approvals shall be in full force and effect;
(m) the representations and warranties of the Borrower contained in this
Agreement and of the Guarantors in the Guaranties shall be true and correct in
all material respects on and as of the Closing Date both before and after giving
effect to the making of any Loans;
(n) receipt by the Lead Agent and the Banks of a certificate of an
authorized financial officer of the Borrower or its general partner certifying
that the Borrower is in compliance with all covenants of the Borrower contained
in this Agreement, including, without limitation, the requirements of Section
5.8, based on pro forma calculations as of the Closing Date, both before and
after giving effect to the making of any Loans;
(o) receipt by the Lead Agent and the Banks of satisfactory evidence of
the consummation of CalWest's acquisition of Cabot Trust and the merger of Cabot
Trust into a wholly-owned subsidiary of CalWest;
(p) receipt by the Lead Agent of copies, certified as true and correct by
an officer of the Borrower, of the executed Bridge Loan documents;
(q) the Lead Agent shall have received (i) all certificates and other
information it shall reasonably request to verify that all Unencumbered Asset
64
Pool Properties satisfy the requirements set forth in the definition thereof and
any other provisions of this Agreement and (ii) current certificates of
insurance as to all of the insurance maintained by the Consolidated Businesses
on the Real Property Assets from the insurer or an independent insurance broker,
identifying insurers, types of insurance, insurance limits, and policy terms,
and such further information and certificates from the Borrower, its insurers
and insurance brokers as the Lead Agent may reasonably request; and
(r) the Borrower shall have requested a Loan in the amount of the
Available Facility and directed the Lead Agent to disburse the proceeds of such
Loan to repay the Bridge Loan in accordance with instructions provided to the
Lead Agent by the Borrower.
The Lead Agent shall promptly notify the Borrower and the Banks of the Closing
Date, and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.2. Each Credit Event. The obligation of any Bank to make a Loan,
other than a Refunded Swing Loan, on the occasion of any Borrowing and of an
Issuing Bank to issue, amend, renew or extend any Letter of Credit (such
Borrowing or such issuance, amendment, renewal or extension of a Letter of
Credit is referred to herein as a "Credit Event") is subject to the satisfaction
of the following conditions:
(a) the Closing Date shall have occurred on or prior to February 8, 2002;
(b) receipt by the Lead Agent of a Notice of Borrowing as required by
Section 2.2, a Money Market Quote Request as required by Section 2.1(c)(ii) or a
request for issuance of a Letter of Credit as required by Section 2A.1(c);
(c) immediately after such Credit Event, the Outstanding Balance will not
exceed the aggregate amount of the Commitments and, with respect to each Bank,
such Bank's pro rata portion of the Committed Loans and Letter of Credit
Obligations will not exceed an amount equal to the lesser of (i) such Bank's
Commitment and (ii) such Bank's pro rata share of the Available Facility;
(d) immediately before and after such Credit Event, no Default or Event
of Default shall have occurred and be continuing both before and after giving
effect to such Credit Event;
65
(e) the representations and warranties of the Borrower contained in this
Agreement and of the Guarantors in the Guaranties (other than representations
and warranties which speak as of a specific date) shall be true and correct in
all material respects on and as of the date of such Credit Event both before and
after giving effect to such Credit Event;
(f) no law or regulation shall have been adopted, no order, judgment or
decree of any Governmental Authority shall have been issued, and no litigation
shall be pending or threatened, which does or, with respect to any threatened
litigation, seeks to enjoin, prohibit or restrain, the making or repayment of
the Loans or issuance, amendment, renewal or extension of Letters of Credit, or
any participations therein, or the consummation of the transactions contemplated
hereby; and
(g) no event, act or condition shall have occurred after the Closing Date
which, in the reasonable judgment of the Lead Agent or the Required Banks, as
the case may be, has had or is likely to have a Material Adverse Effect.
Each Credit Event hereunder shall be deemed to be a representation and warranty
by the Borrower on the date of such Credit Event as to the facts specified in
clauses (c) through (g) of this Section (except that with respect to clause (f),
such representation and warranty shall be deemed to be limited to laws,
regulations, orders, judgments, decrees and litigation solely affecting the
Borrower and not the Banks).
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lead Agent, the Issuing Bank, and each of the
Banks, which is or may become a party to this Agreement to make the Loans and
otherwise extend credit hereunder, the Borrower makes the following
representations and warranties. Such representations and warranties shall
survive the effectiveness of this Agreement, the execution and delivery of the
other Loan Documents and the making of the Loans and the issuance of the Letters
of Credit.
SECTION 4.1. Existence and Power. The Borrower is duly organized, validly
existing and in good standing as a limited partnership under the laws of the
State of Delaware and has all powers and all material governmental licenses,
authorizations, consents and approvals required to own its property and assets
and carry on its business as now conducted or as it presently proposes to
conduct and has been duly qualified and is in good standing in
66
every jurisdiction in which the failure to be so qualified and/or in good
standing would reasonably be expected to have a Material Adverse Effect.
SECTION 4.2. Power and Authority. The Borrower has the power and authority
to execute, deliver and carry out the terms and provisions of each of the Loan
Documents to which it is a party and has taken all necessary action to authorize
the execution and delivery on behalf of the Borrower and the performance by the
Borrower of such Loan Documents. The Borrower has duly executed and delivered
each Loan Document to which it is a party, and each such Loan Document
constitutes the legal, valid and binding obligation of the Borrower, enforceable
in accordance with its terms, except as enforceability may be limited by
applicable insolvency, bankruptcy or other laws affecting creditors' rights
generally, or general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law.
SECTION 4.3. No Violation. Neither the execution, delivery or performance
by or on behalf of the Borrower of the Loan Documents to which it is a party,
nor compliance by the Borrower with the terms and provisions thereof nor the
consummation of the transactions contemplated by the Loan Documents to which it
is a party, (i) will contravene any applicable provision of any Requirement
applicable to the Borrower or (ii) will conflict with or result in any breach
of, any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of the Borrower
pursuant to the terms of, any material indenture, mortgage, deed of trust, or
other agreement or other instrument to which the Borrower (or of any partnership
of which the Borrower is a partner) is a party or by which it or any of its
property or assets is bound or to which it is subject or (iii) will cause a
default by the Borrower under any organizational document of the Borrower or any
Subsidiary of the Borrower, or cause a default under the organizational
documents of the Borrower's general partner.
SECTION 4.4. Financial Information.
---------------------
(a) The unaudited consolidated balance sheet of the Borrower as of
September 30, 2001, when delivered to Lead Agent shall fairly present, in
conformity with GAAP, the consolidated financial position of the Borrower as of
such date.
(b) As of the Closing Date, there has been no material adverse change in
the business, financial position or results of operations of the Borrower since
September 30, 2001.
67
SECTION 4.5. Litigation.
----------
(a) There is no action, suit or proceeding pending against, or to the
knowledge of the Borrower, threatened against or affecting (i) the Borrower or
any of the Guarantors or any of their Subsidiaries, (ii) the Loan Documents or
any of the transactions contemplated by the Loan Documents or (iii) any of the
assets of the Borrower or its Subsidiaries, in any case before any court or
arbitrator or any governmental body, agency or official which would reasonably
be expected to have a Material Adverse Effect or which in any manner draws into
question the validity or enforceability of this Agreement or any of the other
Loan Documents.
(b) There are no judgments, orders or decrees of any court of competent
jurisdiction or Governmental Authority against the Borrower or any of the
Guarantors or any of their Subsidiaries which would reasonably be expected to
have a Material Adverse Effect.
SECTION 4.6. Compliance with ERISA.
---------------------
(a) Except as previously disclosed to the Lead Agent and the Banks in
writing, each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to
each Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
(b) None of the assets of any "employee benefit plan" (as such term is
defined in Section 3(3) of ERISA) has been invested in a manner that would cause
the transactions contemplated by the Loan Documents to constitute a nonexempt
prohibited transaction (as such term is defined in Section 4975 of the Internal
Revenue Code or Section 406 of ERISA).
SECTION 4.7. Environmental Compliance. In the ordinary course of its
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Consolidated Subsidiaries, including, without limitation,
68
the Real Property Assets and the Unencumbered Asset Pool Properties, in the
course of which it identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or operating expenditures required
for cleanup or closure of properties presently or previously owned, any capital
or operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat, any costs or
liabilities in connection with offsite disposal of Materials of Environmental
Concern, and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of this review, the
Borrower has reasonably concluded that such associated liabilities and costs,
including the costs of compliance with Environmental Laws, would not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.8. Taxes. Each of the Consolidated Businesses has filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and has paid all taxes due pursuant to
such returns or pursuant to any assessment received by it except those (a) being
contested in good faith and for which appropriate reserves are being maintained
in accordance with GAAP or (b) for which the nonpayment of which would not
reasonably be expected to have a Material Adverse Effect. The charges, accruals
and reserves on the books of the Consolidated Businesses in respect of taxes or
other governmental charges are, in the opinion of the Borrower, adequate.
SECTION 4.9. Full Disclosure. All information (other than projections)
heretofore furnished by the Borrower or any of the other Consolidated Businesses
to the Lead Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, when taken as a whole, true
and accurate in all material respects on the date as of which such information
is stated or certified. The Borrower has disclosed to the Banks in writing any
and all facts known to the Borrower which have or are likely to have (to the
extent the Borrower can now reasonably foresee) a Material Adverse Effect.
SECTION 4.10. Solvency. On the Closing Date and after giving effect to the
transactions contemplated by the Loan Documents occurring on the Closing Date,
the Borrower is Solvent and each of the Guarantors is Solvent.
SECTION 4.11. Use of Proceeds; Margin Regulations. All proceeds of the
Loans and all Letters of Credit will be used by the Borrower only for
69
Approved Uses. No part of the proceeds of any Loan and no Letter of Credit will
be used by the Borrower to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
Neither the making of any Loan or issuance of any Letter of Credit nor the use
of the proceeds thereof will violate or be inconsistent with the provisions of
Regulation T, U or X of the Federal Reserve Board.
SECTION 4.12. Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any Governmental Authority is required to authorize, or
is required in connection with the execution, delivery and performance of any
Loan Document or the consummation of any of the transactions contemplated
thereby other than those (a) that have already been duly made or obtained and
remain in full force and effect or (b) the failure of which to obtain would not
reasonably be expected to have a Material Adverse Effect.
SECTION 4.13. Investment Company Act, Public Utility Holding Company Act,
Etc. None of the Consolidated Businesses is (x) an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended, (y) a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of either a
"holding company" or a "subsidiary company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or (z) subject to any other
Requirement which purports to restrict or regulate its ability to borrow money
or guarantee any indebtedness for borrowed money.
SECTION 4.14. Closing Date Transactions. On the Closing Date and
immediately prior to or concurrently with the making of the Loans, the
transactions (other than the making of the Loans or issuance of Letters of
Credit) intended to be consummated on the Closing Date will have been
consummated in accordance with all applicable laws. On or prior to the Closing
Date, all consents and approvals of, and filings and registrations with, and all
other actions by, any Person required in order to make or consummate such
transactions have been obtained, given, filed or taken and are in full force and
effect, other than those the failure of which to obtain would not reasonably be
expected to have a Material Adverse Effect.
SECTION 4.15. Representations and Warranties in Loan Documents. All
representations and warranties made by the Borrower or any Guarantor in the Loan
Documents are true and correct in all material respects.
70
SECTION 4.16. Patents, Trademarks, Etc. Each of the Consolidated
Businesses has obtained and holds in full force and effect all patents,
trademarks, service marks, trade names, copyrights and other such rights, free
from burdensome restrictions, which are necessary for the operation of its
business as presently conducted, the impairment of which would reasonably be
expected to have a Material Adverse Effect. To the Borrower's knowledge, no
material product, process, method, substance, part or other material presently
sold by or employed by any of the Consolidated Businesses in connection with
such business infringes any patent, trademark, service xxxx, trade name,
copyright, license or other such right owned by any other Person. There is not
pending or, to the Borrower's knowledge, overtly threatened any claim or
litigation against or affecting any of the Consolidated Businesses contesting
its right to sell or use any such product, process, method, substance, part or
other material.
SECTION 4.17. No Default. No Default or Event of Default exists. None of
the Consolidated Businesses is in default in any material respect beyond any
applicable grace period under or with respect to any other material agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound in any respect, the existence of which default would
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.18. Licenses, etc. Each of the Consolidated Businesses has
obtained and holds in full force and effect, all franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, easements, rights
of way and other consents and approvals which are necessary for the operation of
its businesses as presently conducted, the absence of which would reasonably be
expected to have a Material Adverse Effect.
SECTION 4.19. Compliance With Law. Each of the Consolidated Businesses is
in compliance with all laws, rules, regulations, orders, judgments, writs and
decrees, including, without limitation, all building and zoning ordinances and
codes, the failure to comply with which would reasonably be expected to have a
Material Adverse Effect.
SECTION 4.20. No Burdensome Restrictions. None of the Consolidated
Businesses is a party to any agreement or instrument or subject to any other
obligation or any charter or corporate or partnership restriction, as the case
may be, which, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.
SECTION 4.21. Brokers' Fees. None of the Consolidated Businesses has dealt
with any broker or finder with respect to the transactions
71
contemplated by the Loan Documents (except with respect to the acquisition or
disposition of Real Property Assets) or otherwise in connection with this
Agreement, and none of the Consolidated Businesses has done any acts, had any
negotiations or conversations, or made any agreements or promises which will in
any way create or give rise to any obligation or liability for the payment by it
of any brokerage fee, charge, commission or other compensation to any party with
respect to the transactions contemplated by the Loan Documents (except with
respect to the acquisition or disposition of Real Property Assets), other than
the fees payable hereunder.
SECTION 4.22. Labor Matters. There are no collective bargaining agreements
or Multiemployer Plans covering the employees of the Consolidated Businesses and
none of the Consolidated Businesses has suffered any strikes, walkouts, work
stoppages or other material labor difficulty within the last five (5) years.
SECTION 4.23. Organizational Documents. The documents delivered pursuant
to Section 3.1(e) constitute, as of the Closing Date, all of the organizational
documents (together with all amendments and modifications thereof) of the
Borrower and the Guarantors. The Borrower has delivered to the Lead Agent true,
correct and complete copies of each of the documents set forth in Section
3.1(e).
SECTION 4.24. [Reserved]
--------
SECTION 4.25. Principal Offices. The principal office, chief executive
office and principal place of business of the Borrower is 000 Xxxxx Xxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
SECTION 4.26. REIT Status. For the fiscal year ended December 31, 2001,
Cabot Trust, the general partner of the Borrower, will qualify and, subject to
Section 5.18, intends to continue thereafter to qualify as a real estate
investment trust under the Internal Revenue Code.
SECTION 4.27. Ownership of Property. Schedule 4.27 attached hereto and
made a part hereof sets forth all of the Real Property Assets as of the Closing
Date and the record owner thereof. As of the Closing Date, the Borrower or such
record owner has good and insurable fee simple title (or leasehold title if so
designated on Schedule 4.27) to all of such Real Property Assets, subject to no
Liens other than Permitted Liens. As of the date of this Agreement, there are no
mortgages, deeds of trust, indentures, debt instruments or other agreements
creating a Lien against any of the Real Property Assets, except as disclosed on
Schedule 4.27. As of the date hereof,
72
each Unencumbered Asset Pool Property is wholly owned (or ground-leased under a
mortgageable ground lease) by the Borrower or a Guarantor.
ARTICLE V.
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank has any
Commitment hereunder or any Obligations remain unpaid or any Letters of Credit
remain outstanding:
SECTION 5.1. Information. The Borrower will deliver to the Lead Agent and
to each of the Banks:
(a) as soon as available and in any event within one hundred and twenty
(120) days after the end of each fiscal year of CalWest, audited consolidated
balance sheets of CalWest and its Consolidated Subsidiaries and of the CMBS
Borrowers, and of the foregoing on a combined basis, and an audited balance
sheet of the Borrower, all as of the end of such fiscal year and the related
consolidated statements of cash flow and operations for such fiscal year,
setting forth in each case in comparative form the corresponding figures for the
previous fiscal year, audited by one of the so-called "Big Five" national
accounting firms or other nationally-recognized independent public accountants
reasonably acceptable to the Lead Agent, which report shall be unqualified and
shall state that such financial statements fairly present the consolidated
financial position of CalWest and its Consolidated Subsidiaries and of the CMBS
Borrowers, on a combined basis, and the Borrower as at the dates indicated and
the results of their operations and cash flow for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except for
changes with which such independent certified public accountants, if applicable,
shall concur and which shall have been disclosed in the notes to such financial
statements), and in the event that such report is qualified, a copy of the
management letter or any similar report delivered to CalWest or the Borrower or
to any officer or employee thereof by such independent certified public
accountants in connection with such financial statements;
(b) as soon as available and in any event within sixty (60) days after
the end of each quarter of each fiscal year (other than the last quarter in any
fiscal year) of CalWest, an unaudited consolidated balance sheet of CalWest and
its Consolidated Subsidiaries and of the CMBS Borrowers, and of the foregoing on
a combined basis, and an unaudited balance sheet of the Borrower, all as of the
end of such fiscal quarter and the related consolidated statements of cash flow
and operations for such fiscal quarter, setting forth in
73
each case in comparative form the corresponding figures for the corresponding
period of the previous fiscal year;
(c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, a certificate of an authorized
financial officer of the Borrower or its general partner: (i) setting forth in
reasonable detail the calculations required to establish whether the Borrower
was in compliance with the requirements of Section 5.8 on the date of such
financial statements; (ii) stating whether any Default or Event of Default
exists on the date of such certificate and, if any Default or Event of Default
then exists, setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto; and (iii) certifying (x)
that such financial statements fairly present the financial condition and the
results of operations of CalWest and its Consolidated Subsidiaries and of the
CMBS Borrowers as of the dates and for the periods indicated, in accordance with
GAAP, subject, in the case of interim financial statements, to normal year-end
adjustments and omission of required footnotes, and (y) that such officer has
reviewed the terms of the Loan Documents and has made, or caused to be made
under his or her supervision, a review in reasonable detail of the business and
condition of the Borrower during the period beginning on the date through which
the last such review was made pursuant to this Section 5.1(c) (or, in the case
of the first certification pursuant to this Section 5.1(c), the Closing Date)
and ending on a date not more than ten (10) Domestic Business Days prior to the
date of such delivery and that (1) on the basis of such financial statements and
such review of the Loan Documents, no Event of Default existed under Section
6.1(b) with respect to Section 5.8 at or as of the date of said financial
statements, (2) on the basis of such review of the Loan Documents and the
business and condition of the Borrower, to the actual knowledge of such officer,
no Default or Event of Default under any other provision of Section 6.1 occurred
or, if any such Default or Event of Default has occurred and is then continuing,
specifying the nature and extent thereof and, if continuing, the action the
Borrower proposes to take in respect thereof and (3) on the basis of such review
of the Loan Documents and the business and condition of the Borrower, no
Mandatory Prepayment Event then exists or has existed during the period since
the last review pursuant to this Section 5.1(c);
74
(d) [reserved];
(e) (i) within ten (10) days after the president, treasurer, controller
or other executive officer of the Borrower obtains actual knowledge of any
Default or Event of Default, a certificate of the president or executive officer
of the Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto; and (ii) promptly
and in any event within ten (10) days after the Borrower obtains actual
knowledge thereof, notice of (x) any litigation or governmental proceeding
pending or threatened against any of the Consolidated Businesses that would
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect or questions the validity or enforceability of any Loan
Document, and (y) any other event, act or condition which would reasonably be
expected to result in a Material Adverse Effect;
(f) if and when any member of the ERISA Group: (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer, any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of an authorized financial officer of the Borrower or its general
partner setting forth details as to such occurrence and the action, if any,
which the Borrower or, if the Borrower has actual knowledge thereof, the
applicable member of the ERISA Group is required or proposes to take;
75
(g) promptly and in any event within ten (10) Domestic Business Days
after the Borrower obtains actual knowledge of any of the following events, a
certificate of the Borrower executed by an officer of the Borrower specifying
the nature of such condition and the Borrower's, if the Borrower has actual
knowledge thereof, or otherwise the applicable Environmental Affiliate's,
proposed initial response thereto: (i) the receipt by the Borrower, or, if the
Borrower has actual knowledge thereof, any of the Environmental Affiliates, of
any communication (written or oral), whether from a Governmental Authority,
citizens group, employee or otherwise, that alleges that the Borrower, or, if
the Borrower has actual knowledge thereof, any of the Environmental Affiliates,
is not in compliance with applicable Environmental Laws, and such noncompliance
affects an Unencumbered Asset Pool Property or would reasonably be expected to
have a Material Adverse Effect; (ii) the Borrower shall obtain actual knowledge
that there exists any Environmental Claim pending or threatened against the
Borrower or any Environmental Affiliate which affects an Unencumbered Asset Pool
Property or would reasonably be expected to have a Material Adverse Effect; or
(iii) the Borrower obtains actual knowledge of any Release or disposal of any
Material of Environmental Concern that would reasonably be expected to form the
basis of any Environmental Claim against the Borrower or any Environmental
Affiliate that affects an Unencumbered Asset Pool Property or would reasonably
be expected to have a Material Adverse Effect;
(h) promptly and in any event within ten (10) Domestic Business Days
after receipt of any material notices or correspondence from any company or
agent for any company providing insurance coverage to the Borrower or a
Guarantor relating to any material loss or loss of the Borrower or a Guarantor
with respect to any of the Unencumbered Asset Pool Properties, copies of such
notices and correspondence;
(i) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which CalWest, Cabot Trust or the Borrower shall have filed with
the Securities and Exchange Commission;
(j) promptly upon the mailing thereof to the shareholders of CalWest,
copies of all financial statements, reports and proxy statements so mailed;
(k) [reserved]
76
(l) simultaneously with the delivery of the certificate referred to in
clause (c) above, a statement containing a listing of all new construction
projects and Real Property Assets then undergoing significant rehabilitation;
(m) simultaneously with the delivery of the information required by
Sections 5.1(a) and 5.1(b), a statement of Unencumbered Asset Pool Net Operating
Cash Flow and an updated Schedule U listing the Unencumbered Asset Pool
Properties;
(n) within sixty (60) days after the end of each quarter of each fiscal
year of the Borrower, an updated Schedule 4.27, certified by an authorized
financial officer of the Borrower or its general partner as true, correct and
complete as of the date such updated schedule is delivered;
(o) upon request of the Lead Agent from time to time, a certificate of an
authorized financial officer of the Borrower or its general partner certifying
that Cabot Trust is properly classified and continues to qualify as a real
estate investment trust under the Internal Revenue Code and has taken all
actions consistent with maintaining such status;
(p) promptly upon receipt thereof, any notice or communication from any
Rating Agency regarding any change in the Applicable Credit Rating; and
(q) from time to time such additional information regarding the financial
position or business of the Borrower as the Lead Agent, at the request of any
Bank, may reasonably request.
SECTION 5.2. Payment of Obligations. The Borrower will, and will cause
each of the other Consolidated Businesses to, pay and discharge, at or before
maturity, all its material obligations and liabilities including, without
limitation, any obligation pursuant to any agreement by which it or any of its
properties is bound and any tax liabilities, in any case, where failure to do so
will likely result in a Material Adverse Effect except such tax liabilities and
other obligations or liabilities may be contested in good faith by appropriate
proceedings, so long as such Person maintains in accordance with GAAP,
appropriate reserves for the accrual of any of the same.
SECTION 5.3. Maintenance of Property; Insurance.
----------------------------------
(a) The Borrower will, and will cause each of the other Consolidated
Businesses to, keep each of the Real Property Assets in good repair, working
order and condition, subject to ordinary wear and tear.
77
(b) The Borrower will, and will cause each of the other Consolidated
Businesses to, (i) maintain, with reputable insurers, insurance coverages in
such amounts, against such risks and having such deductibles as is customary
from time to time for properties similar to the Real Property Assets which are
owned and/or operated by prudent Persons similar to the Borrower or such other
Consolidated Business, which insurance shall in any event not provide for
materially less coverage than the insurance in effect on the Closing Date, and
(ii) furnish to each Bank from time to time, upon written request, copies of
certificates of insurance and such other information relating to such insurance
as such Bank may reasonably request and copies of policies as the Lead Agent may
reasonably request if the Lead Agent reasonably believes that there is or may be
material contingencies or casualties under insurance maintained by the
Consolidated Businesses. The Borrower will deliver to the Banks (i) upon request
of any Bank through the Lead Agent from time to time, full information as to the
insurance carried, (ii) within ten (10) days of receipt of notice from any
insurer, a copy of any notice of cancellation or material change in coverage
from that existing on the date of this Agreement and (iii) forthwith, notice of
any cancellation or nonrenewal of coverage by the Borrower or any Guarantor.
SECTION 5.4. Intentionally Omitted
---------------------
SECTION 5.5. Compliance with Laws. The Borrower will, and will cause each
of the other Consolidated Businesses to, comply with all applicable Requirements
(including, without limitation, Environmental Laws, all zoning and building
codes and ERISA and the rules and regulations thereunder), except where (a) the
necessity of compliance therewith is contested in good faith by appropriate
proceedings and no Material Adverse Effect could reasonably be expected to occur
during such contest or (b) the failure to comply would not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.6. Inspection of Property, Books and Records. The Borrower will,
and will cause each of the other Consolidated Businesses to, (a) keep proper
books of record and account in which full, true and correct entries shall be
made of all dealings and transactions in relation to its business and activities
and (b) permit representatives of any Bank at such Bank's expense to visit and
inspect any of its properties, to examine and make abstracts from any of its
books and records and to discuss its affairs, finances and accounts with its
officers and employees, all at such reasonable times, upon reasonable notice,
and as often as may reasonably be desired.
78
SECTION 5.7. Existence.
---------
(a) Except as permitted in Section 5.9, the Borrower will, and will cause
each of the other Consolidated Businesses to, do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
limited partnership, corporation, trust, or limited liability company, as
applicable.
(b) The Borrower will, and will cause each of the other Consolidated
Businesses to, do or cause to be done all things necessary to preserve and keep
in full force and effect its patents, trademarks, service marks, trade names,
copyrights, franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights,
consents and approvals the nonexistence of which would reasonably be expected to
have a Material Adverse Effect.
SECTION 5.8. Financial Covenants.
-------------------
(a) Total Debt Ratio. As of the last day of each calendar quarter, the
Total Debt Ratio will not be greater than 55%.
(b) EBITDA Interest Coverage. As of the last day of each calendar
quarter, the ratio of (i) Annual EBITDA to (ii) all interest (whether accrued,
paid or capitalized) actually payable by the Consolidated Businesses on their
respective Debt for the previous four (4) consecutive quarters (other than
capitalized interest actually paid from a reserve fund established for such
purpose in connection with such Debt), including the quarter then ended, will
not be less than 2.25:1.
(c) Fixed Charge Coverage. As of the last day of each calendar quarter,
the ratio of Annual EBITDA to Total Fixed Charges will not be less than 1.50:1.
(d) Unencumbered Interest Coverage. As of the last day of each calendar
quarter and as of the date of any sale of or granting of a Lien on any
Unencumbered Asset Pool Property, the ratio of (i) Unencumbered Asset Pool Net
Operating Cash Flow to (ii) Unsecured Interest Expense will not be less than
2:1.
(e) Unsecured Debt Ratio. As of each of (w) the last day of each calendar
quarter, (x) the date of any New Acquisition, (y) the date of any Borrowing and
(z) the date of any sale of or granting of a Lien on any
79
Unencumbered Asset Pool Property, the Unsecured Debt Ratio shall not exceed 55%.
(f) Limitations on Secured Debt and Recourse Debt. Secured Debt of the
Consolidated Businesses shall at no time exceed forty percent (40%) of Tangible
FMV. Secured Debt of the Consolidated Businesses that is Recourse Debt shall at
no time exceed $25,000,000, unless such Debt is incurred in connection with the
extension of the maturity of the Bridge Loan and does not otherwise result in a
Default or an Event of Default. Recourse Debt of those Consolidated Businesses
which are not the Borrower or a Guarantor shall at no time exceed $25,000,000.
(g) Minimum Tangible Net Worth. The Consolidated Tangible Net Worth will
at no time be less than the sum of (x) $1,500,000,000 and (y) 80% of the Net
Offering Proceeds from and after the date hereof.
(h) Required Occupancy Level. The aggregate Unencumbered Asset Pool
Property Value for Unencumbered Asset Pool Properties which have failed to
maintain the Required Occupancy Level for the thirty (30) day period prior to
the date of determination shall not comprise more than 20% of the aggregate
Unencumbered Asset Pool Property Value for all Unencumbered Asset Pool
Properties (including the Unencumbered Asset Pool Properties which have failed
to so maintain the Required Occupancy Level).
(i) Investment Limitations. None of the Borrower or the Guarantors will
make or permit to exist or to remain outstanding any Investment in violation of
the following restrictions and limitations:
(1) The aggregate Investments of the Consolidated Businesses
consisting of Minority Holdings shall not at any time be equal to or
greater than twenty percent (20%) of Tangible FMV.
(2) The Consolidated Businesses shall not incur total budgeted
committed construction costs ("Development Costs") (in the aggregate
as to all such Persons at any given time) for all current development
and construction activities, including the amount of CalSmart
Guaranties described in clause (y) of the definition of "Tangible
FMV" in Section 1.1 hereof (which shall in no event exceed five
percent (5%) of Tangible FMV at any time) and Investments consisting
of Debt incurred in connection with such development and construction
activities, in excess of twenty percent (20%) of Tangible FMV
(provided that such Development Costs shall exclude (i) development
of projects that are at least 85% pre-leased (in connection
80
with which the Consolidated Businesses shall have no construction
completion risk other than completion of tenant improvements) to the
extent the total budgeted committed construction costs of which do
not (individually or in the aggregate) exceed ten percent (10%) of
Tangible FMV or (ii) development in connection with the expansion
and/or repositioning or restoration following a casualty or
condemnation of existing improvements on Real Property Assets).
(3) The aggregate Investments of the Consolidated Businesses in
Unimproved Land shall at no time exceed ten percent (10%) of Tangible
FMV.
(4) The aggregate Investments of the Consolidated Businesses in
assets other than industrial real estate and those described in
clauses (1) through (3) of this Section 5.8(i) shall be limited to
real estate assets related to the business of the Consolidated
Businesses and shall at no time exceed five percent (5%) of Tangible
FMV.
(5) The aggregate Investments of the Consolidated Businesses in
the assets described in clauses (1) through (4) of this Section
5.8(i) shall at no time exceed thirty-five percent (35%) of Tangible
FMV.
(j) Maximum Dividend Payout Ratio. CalWest shall not make any Restricted
Payment during any calendar quarter, which, when added to all Restricted
Payments made during the three immediately preceding calendar quarters, exceeds
100% of Cash Flow of the Consolidated Businesses; provided that Restricted
Payments may temporarily exceed 100% of Cash Flow in the ordinary course of
business; and provided further that CalWest shall not make any Restricted
Payment if a Default or an Event of Default shall have occurred and be
continuing or would result therefrom. For purposes of this provision,
"Restricted Payment" means any net cash dividend or other net cash distribution
on any of CalWest's equity interests (except dividends payable solely in shares
of its equity interests or in rights to subscribe for or purchase shares of its
equity interests), and shall not include (A) distributions of net cash proceeds
from the financing, sale or other disposition of Real Property Assets so long as
such financing, sale or disposition otherwise complies with this Agreement and
(B) a one-time distribution of approximately $75,000,000 of excess capital that
was funded in connection with CalWest's acquisition of Cabot Trust so long as
CalWest determines in good faith that such amount is no longer needed for
working
81
capital and no Default or Event of Default has occurred and is continuing or
would result therefrom.
SECTION 5.9. Restriction on Fundamental Changes; Operation and Control.
---------------------------------------------------------
(a) Cabot Trust shall carry on its business operations substantially
through the Borrower and its Consolidated Subsidiaries. The Borrower shall at
all times remain a Subsidiary of Cabot Trust and CalWest. Neither the Borrower
nor any Guarantor shall enter into any merger or consolidation, unless (i) the
Borrower or a Guarantor is the surviving entity, (ii) the entity which is merged
into or consolidated with the Borrower or a Guarantor is primarily engaged in
the commercial real estate business, (iii) the creditworthiness of the surviving
entity's long term unsecured debt or implied senior debt, as applicable, is not
lower than the Applicable Credit Rating as of the date two (2) months
immediately prior to such merger or consolidation, and (iv) in the case of any
merger or consolidation where the then fair market value of the assets of the
entity which is merged into or consolidated with the Borrower or a Guarantor is
twenty-five percent (25%) or more of the then Tangible FMV, the Lead Agent
consents thereto in writing, which consent shall not be unreasonably withheld,
conditioned or delayed. Neither the Borrower nor any Guarantor shall liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its
business or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or any substantial part of its
business or property, whether now or hereafter acquired. Nothing in this Section
shall be deemed to prohibit the sale or leasing of portions of the Real Property
Assets in the ordinary course of business of the Borrower, the Guarantors or
their Consolidated Subsidiaries.
(b) The Borrower shall not amend its organizational documents or the
Bridge Loan documents in any material respect, without the Lead Agent's consent,
which shall not be unreasonably withheld or delayed.
(c) The Borrower shall deliver to the Lead Agent copies of all amendments
to its partnership agreement, partnership certificate, or other organizational
documents no less than ten (10) days after the effective date of any such
amendment.
SECTION 5.10. Changes in Business. The Consolidated Businesses shall not
enter into any business which is substantially different from the acquisition,
ownership, development, management or operation of industrial real estate or the
acquisition and ownership of vacant land for the purposes
82
of developing industrial real estate (subject, however, to the limitations set
forth herein).
SECTION 5.11. Affiliate Transactions. None of the Consolidated Businesses
shall directly or indirectly enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder or holders of more
than five percent (5%) of any class of equity Securities of such Person, or with
any Affiliate of such Person which is not its Subsidiary, on terms which in the
aggregate are less favorable to such Person or any of its Subsidiaries than
those that might be obtained in an arm's length transaction at the time from
Persons who are not such a holder or Affiliate.
SECTION 5.12. Fiscal Year; Fiscal Quarter. The Borrower will not, and will
not permit any of the Guarantors to, change its fiscal year or any of its fiscal
quarters without the Lead Agent's consent, which shall not be unreasonably
withheld, conditioned or delayed; provided, that Cabot or CalWest may change its
fiscal year to that of the other upon thirty (30) days written notice to the
Lead Agent.
SECTION 5.13. Margin Stock. None of the proceeds of the Loans and none of
the Letters of Credit will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of buying or carrying any Margin
Stock.
SECTION 5.14. Use of Proceeds. The Borrower shall use the proceeds of the
Loans and Letters of Credit solely (i) to facilitate the acquisition by the
Borrower or a Guarantor (either directly or indirectly through Subsidiaries or
unconsolidated joint ventures as permitted by the terms hereof) of real
properties (or interests therein) (the "New Acquisitions") located in the United
States which are primarily industrial, it being understood that the Borrower may
distribute, lend or otherwise transfer the proceeds of a Loan to a Subsidiary
(or an unconsolidated joint venture in which the Borrower owns an equity
interest as permitted by the terms hereof) or obtain a Letter of Credit for such
purpose, (ii) for other purposes related to the acquisition of such properties
(including, without limitation, the payment of fees and other costs related to
such acquisition), (iii) for construction and development related purposes, (iv)
for repayment of Debt or (v) for other working capital purposes (collectively,
"Approved Uses").
SECTION 5.15. Interest Rate Protection. The Borrower and the Guarantors
shall maintain Interest Rate Xxxxxx on a notional amount of the Debt of the
Consolidated Businesses (other than the Bridge Loan) which, when added to the
aggregate principal amount of the Debt of the
83
Consolidated Businesses which bears interest at a fixed rate, equals or exceeds
75% of the aggregate principal amount of all Debt of the Consolidated Businesses
(other than the Bridge Loan). "Interest Rate Xxxxxx" shall mean interest rate
exchange, collar, cap, swap, adjustable strike cap, adjustable strike corridor
or similar agreements having terms, conditions and tenors reasonably acceptable
to the Lead Agent entered into by the Consolidated Businesses in order to
provide protection to, or minimize the impact upon, the Consolidated Businesses
of increasing floating rates of interest applicable to Debt.
SECTION 5.16. Liens; Release of Liens.
-----------------------
(a) None of the Consolidated Businesses shall, at any time during the
Term, directly or indirectly create, incur, assume or permit to exist any Lien
for borrowed monies or any other Lien (except for Permitted Liens) on or with
respect to any Unencumbered Asset Pool Property or the equity interest in the
Borrower or any Subsidiary Guarantor which owns an Unencumbered Asset Pool
Property. Notwithstanding the foregoing, the Borrower may xxxxx x Xxxx on any
Unencumbered Asset Pool Property and obtain a release of any Unencumbered Asset
Pool Property from the terms of this Agreement provided that the Borrower has
complied with Section 2.9(a) and prior to or simultaneously with such release
(i) the Borrower shall pay to the Lead Agent, for the account of the Banks, any
amounts due pursuant to Section 2.9(a) and (ii) the Borrower delivers to the
Lead Agent a certificate from an authorized financial officer of Borrower or its
general partner certifying that, at the time of the release, (a) the Borrower is
in compliance with all of the covenants contained in Sections 5.8, 5.9, 5.16 and
5.17 before and after giving effect to the transaction, and (b) assuming the
sale, transfer or conveyance is actually consummated, to the actual knowledge of
such officer, no Default or Event of Default has occurred and is then continuing
or would result therefrom.
(b) So long as Section 6.1 of the Bridge Loan Agreement is applicable, no
Consolidated Business shall directly or indirectly incur, create, assume or
permit to exist any Lien with respect to any of its Real Property Assets or any
of its other property, income or profits (or any equity interest in a
Subsidiary), other than Permitted Liens under this Agreement and Permitted Liens
under the Bridge Loan Agreement.
SECTION 5.17. Sale of Unencumbered Asset Pool Properties. Prior to the
sale or transfer of any Unencumbered Asset Pool Property, the Borrower shall (i)
deliver prior written notice to the Lead Agent, (ii) deliver to the Lead Agent a
certificate from an authorized financial officer of Borrower or its
84
general partner certifying that (A) at the time of such sale or other disposal
(based on pro-forma calculations for the previous period assuming that such
Unencumbered Asset Pool Property was not an Unencumbered Asset Pool Property for
the relevant period), the Borrower is in compliance with all of the covenants
contained in Sections 5.8, 5.9, 5.16 and 5.17 before and after giving effect to
the transaction and (B) assuming that the sale or transfer is actually
consummated, to the actual knowledge of such officer, no Default or Event of
Default has occurred and is then continuing or would result therefrom, and (iii)
pay to the Lead Agent, for the account of the Banks, an amount equal to that
required pursuant to Section 2.9(a).
SECTION 5.18. REIT Status.
-----------
(a) Except as permitted in Section 5.9 and Section 5.18(b), Cabot Trust
shall at all times maintain its status as a real estate investment trust under
the Internal Revenue Code.
(b) The Borrower has informed the Lead Agent and the Banks that Cabot
Trust may in the future elect to discontinue its status as a real estate
investment trust under the Internal Revenue Code. The Lead Agent and the Banks
acknowledge and agree that Cabot Trust may so discontinue its status as a real
estate investment trust so long as (i) the Borrower gives the Lead Agent at
least thirty (30) days prior written notice, (ii) no Default or Event of Default
has occurred and is continuing at the time such transaction occurs, or would
result therefrom, and (iii) such transaction would not otherwise reasonably be
expected to have a Material Adverse Effect.
SECTION 5.19. No Negative Pledges. None of the Consolidated Businesses
will enter into any agreement containing any provision prohibiting the creation
or assumption of any Lien upon its properties (other than with respect to
prohibitions on liens on a particular property set forth in the mortgage or
other loan documents relating to the financing of such property and other than
the negative pledge set forth in Section 6.1 of the Bridge Loan Agreement, if
then applicable), revenues or assets, whether now owned or hereafter acquired,
or restricting the ability to amend or modify this Agreement or the other Loan
Documents.
SECTION 5.20. Additional Guarantors; Release of Guarantors.
--------------------------------------------
(a) If, after the Closing Date, a Subsidiary of the Borrower or CalWest
that is not a Guarantor acquires any Real Property Asset that then or thereafter
qualifies under the definition of Unencumbered Asset Pool Property, the Borrower
shall cause such Person (which Person must be or become a Subsidiary of the
Borrower or CalWest) to execute and deliver a
85
Subsidiary Guaranty to the Lead Agent and the Banks in substantially the form of
Exhibit G hereto. Such Subsidiary Guaranty shall evidence consideration and
equivalent value.
(b) Other than during the continuance of a Default or Event of Default,
at the request of the Borrower following the delivery of the certificate in
accordance with Section 5.16 hereof, the Subsidiary Guaranty of any Subsidiary
Guarantor shall be released by the Lead Agent if and when all of the Real
Property Assets owned or ground-leased by such Subsidiary Guarantor shall cease
(not thereby creating a Default or Event of Default) to be Unencumbered Asset
Pool Properties, provided the foregoing shall never permit the release of
CalWest or Cabot Trust.
SECTION 5.21. No Ownership of Unencumbered Asset Pool Property by CMBS
Borrowers. None of the CMBS Borrowers shall own any Unencumbered Asset Pool
Property.
ARTICLE VI.
DEFAULTS
SECTION 6.1. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Obligations, or the Borrower shall fail to pay within three (3) Domestic
Business Days after the same is due any interest on any Obligations, or the
Borrower shall fail to pay within ten (10) Domestic Business Days after the same
is due any fees hereunder or the Borrower shall fail to pay within ten (10)
Domestic Business Days after notice from the Lead Agent or any Bank any other
amounts payable hereunder;
(b) the Borrower or any of the other Consolidated Businesses shall fail
to observe or perform any covenant contained in Section 5.3(b) or Sections 5.8
through 5.21;
(c) the Borrower or any of the other Consolidated Businesses shall fail
to observe or perform any covenant or agreement contained in this Agreement
(other than those covered by clause (a) or (b) above) for thirty (30) days after
written notice thereof has been given to the Borrower by the Lead Agent;
(d) any representation, warranty, certification or other material
statement made (or deemed made) by the Borrower or a Guarantor in this
86
Agreement, in any of the other Loan Documents, or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall prove to
have been incorrect in any material respect when made (or deemed made);
(e) any of the Consolidated Businesses shall default in the payment when
due (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) of any amount owing in respect of any Recourse Debt or Debt
guaranteed by any of the Consolidated Businesses (other than the Obligations)
equal to or in excess of $20,000,000 in the aggregate, and such default shall
continue beyond the giving of any required notice and the expiration of any
applicable grace period (as the same may be extended by the applicable lender)
and such default shall not be waived by the applicable lender (which waiver
shall serve to reinstate the applicable loan), or any of the Consolidated
Businesses shall default in the performance or observance of any obligation or
condition with respect to any such Debt or any other event shall occur or
condition exist beyond the giving of any required notice and the expiration of
any applicable grace period (as the same may be extended by the applicable
lender), if in any such case as a result of such default in performance or
observance, event or condition, the lender thereof shall accelerate the maturity
of any such Debt or the same shall permit (without any further requirement of
notice or lapse of time) the holder or holders thereof, or any trustee or agent
for such holders, to accelerate the maturity of any such Debt and such default
shall not be waived by the applicable lender (which waiver shall serve to
reinstate the applicable loan), or any such Debt shall become or be declared to
be due and payable prior to its stated maturity other than as a result of a
regularly scheduled payment;
(f) the Borrower or a Guarantor or any of their Consolidated Subsidiaries
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under the
Bankruptcy Code or any other bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally or admit in writing its inability
to pay its debts as they become due, or shall take any action to authorize any
of the foregoing;
(g) an involuntary case or other proceeding shall be commenced against
the Borrower or a Guarantor or any of their Consolidated
87
Subsidiaries seeking liquidation, reorganization or other relief with respect to
it or its debts under the Bankruptcy Code or any other bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of sixty (60) days; or an
order for relief shall be entered against the Borrower or a Guarantor or any of
their Consolidated Subsidiaries under the Bankruptcy Code;
(h) the Borrower or a Guarantor shall default in its obligations under
any Loan Document other than this Agreement beyond any applicable notice and
grace periods;
(i) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $5,000,000 which it shall have become liable to
pay under Title IV of ERISA, or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing, or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer, any Material Plan, or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated, or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $5,000,000 in the aggregate;
(j) one or more final nonappealable judgments or decrees in an aggregate
amount equal to or greater than six percent (6%) of Consolidated Tangible Net
Worth as of such date shall be entered by a court or courts of competent
jurisdiction against any of the Consolidated Businesses (other than any judgment
as to which, and only to the extent, a reputable insurance company has
acknowledged coverage of such claim in writing) and (i) any such judgments or
decrees shall not be stayed, discharged, paid, bonded or vacated within sixty
(60) days (or bonded, vacated or satisfied within sixty (60) days after any stay
is lifted) or (ii) enforcement proceedings shall be commenced by any creditor on
any such judgments or decrees;
(k) (i) any Environmental Claim shall have been asserted against the
Borrower, any Guarantor or any Environmental Affiliate, or (ii)
88
any Release or disposal of any material amount of Material of Environmental
Concern shall have occurred, and such event is reasonably likely to form the
basis of an Environmental Claim, against the Borrower, any Guarantor or any
Environmental Affiliate, in the case of clauses (i) or (ii) above, if the
existence of such condition has had or is reasonably likely to have a Material
Adverse Effect;
(l) At any time, (i) the State of California Public Employees' Retirement
System ("Calpers") shall cease to directly or indirectly own at least 70% of
each of (A) the equity interests in CalWest, (B) the stock of Cabot Trust, and
(C) the voting equity interests in the Borrower (other then preferred
interests), or (ii) RREEF Management Company, or a Subsidiary or Affiliate
controlled by RREEF Management Company, or another Person with experience in the
management of industrial real estate reasonably acceptable to the Lead Agent,
shall cease to be the manager of CalWest and manage the day-to-day operations of
CalWest; or (m) the Borrower or a Guarantor shall fail to meet an exemption
under the Plan Assets Regulations (as defined in ERISA) which would prevent the
assets of the Borrower or a Guarantor from being subject to Title I of ERISA; or
the Borrower or a Guarantor shall take any action, or omit to take any action,
which gives rise to a nonexempt prohibited transaction (as such term is defined
in Section 4975 of the Internal Revenue Code or Section 406 of ERISA) that could
subject the Lead Agent and/or any Bank to any tax or penalty on prohibited
transactions imposed under Section 4975 of the Internal Revenue Code or Section
502(i) of ERISA;
then, and in every such event, the provisions of Section 6.2 shall be
applicable.
SECTION 6.2. Rights and Remedies. Upon the occurrence of any Event of
Default described in Sections 6.1(f) or (g), the Commitments shall automatically
terminate and the unpaid principal amount of, and any and all accrued interest
on, the Obligations and any and all accrued fees and other Obligations hereunder
shall automatically become immediately due and payable, with all additional
interest from time to time accrued thereon and without presentment, demand, or
protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and notice of acceleration), all of which are hereby expressly
waived by the Borrower. Upon the occurrence and during the continuance of any
other Event of Default, the Lead Agent may (and shall, at the instruction of the
Required Banks) exercise any of its rights and remedies hereunder and by written
89
notice to the Borrower, (i) declare the unpaid principal amount of and any and
all accrued and unpaid interest on the Obligations and any and all accrued fees
and other obligations hereunder to be, and the same shall thereupon be,
immediately due and payable with all additional interest from time to time
accrued thereon and without presentment, demand, or protest or other
requirements of any kind other than as provided in the Loan Documents
(including, without limitation, valuation and appraisement, diligence,
presentment, and notice of intent to demand or accelerate), all of which are
hereby expressly waived by the Borrower, and/or (ii) terminate the Commitments.
In addition, upon the occurrence and during continuance of any Event of Default,
the Lead Agent may (and at the request of the Required Banks shall) require the
Borrower to immediately deposit with the Lead Agent an amount of cash equal to
all Letter of Credit Obligations, which amount will be held by the Lead Agent as
collateral for the Obligations.
SECTION 6.3. Notice of Default. If the Lead Agent shall not already have
given any notice to the Borrower under Section 6.1, the Lead Agent shall give
notice to the Borrower under Section 6.1 promptly upon being requested to do so
by the Required Banks and shall thereupon notify all the Banks thereof. Upon
obtaining actual knowledge of a Default or Event of Default, the Lead Agent and
each Bank, as applicable, shall promptly deliver written notice thereof to, in
the case of the Lead Agent's obtaining such knowledge, the other Banks, and in
the case of a Bank's obtaining such knowledge, to the Lead Agent which will then
deliver written notice to the other Banks.
ARTICLE VII.
THE LEAD AGENT
SECTION 7.1. Appointment and Authorization. Each Bank irrevocably appoints
and authorizes the Lead Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Lead Agent by the terms hereof or thereof, together with all
such powers as are reasonably incidental thereto. For the avoidance of doubt,
"Documentation Agent" and "Syndication Agent" are merely titles hereunder, and
each Bank that is the Documentation Agent or the Syndication Agent shall have no
duties or obligations hereunder in its capacity as such, but shall have only
those duties and obligations applicable to it in its capacity as a Bank
hereunder.
SECTION 7.2. Lead Agent and Affiliates. JPMorgan Chase Bank shall have the
same rights and powers under this Agreement as any other
90
Bank and may exercise or refrain from exercising the same as though it were not
the Lead Agent, and JPMorgan Chase Bank and its affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with the
Borrower or any Subsidiary or Affiliate of the Borrower as if it were not the
Lead Agent hereunder, and the term "Bank" and "Banks" shall include JPMorgan
Chase Bank in its individual capacity.
SECTION 7.3. Action by Lead Agent. The obligations of the Lead Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Lead Agent shall not be required to take any
action with respect to any Default or Event of Default, except as expressly
provided in Article VI.
SECTION 7.4. Consultation with Experts. The Lead Agent may consult with
legal counsel (who may be counsel for the Borrower or a Guarantor), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
SECTION 7.5. Liability of Lead Agent. Neither the Lead Agent nor any of
its affiliates nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required Banks or, where
required by the terms of this Agreement, all of the Banks, or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Lead
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 this Agreement or
any borrowing hereunder, (ii) the performance or observance of any of the
covenants or agreements of the Borrower, (iii) the satisfaction of any condition
specified in Article III, except receipt of items required to be delivered to
the Lead Agent or (iv) the validity, effectiveness or genuineness of this
Agreement, the other Loan Documents or any other instrument or writing furnished
in connection herewith. The Lead Agent shall not incur any liability by acting
in reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire or similar means) believed by it in good faith to be
genuine or to be signed by the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in accordance with
its Commitment, indemnify the Lead Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not
91
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement, the other
Loan Documents or any action taken or omitted by such indemnitees hereunder.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Lead Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Lead
Agent or any other Bank, 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 any action under this Agreement.
SECTION 7.8. Successor Lead Agent. The Lead Agent may resign at any time
by giving thirty days notice thereof to the Banks and the Borrower. In addition,
(a) the Required Banks may remove the Lead Agent in the event of the Lead
Agent's gross negligence or willful misconduct in the performance of its duties
as Lead Agent hereunder and (b) the Required Banks (determined without the vote
of the Lead Agent and its Bank Affiliates and without regard to the Commitments
held by the Lead Agent and its Bank Affiliates) may remove the Lead Agent in the
event that the aggregate Commitments of the Lead Agent and its Bank Affiliates
(including any portion thereof subject to a participation) shall become less
than $10,000,000. Upon any such resignation or removal of the Lead Agent, the
Required Banks shall have the right to appoint a successor Lead Agent with the
consent of the Borrower, provided that no Event of Default shall have occurred
and be continuing. If in the case of a resigning Lead Agent no successor Lead
Agent shall have been so appointed by the Required Banks, and shall have
accepted such appointment, within 30 days after the retiring Lead Agent gives
notice of resignation, then the retiring Lead Agent may, on behalf of the Banks,
appoint a successor Lead Agent, which shall be a commercial bank organized or
licensed under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $5,000,000,000. Upon the acceptance
of its appointment as the Lead Agent hereunder by a successor Lead Agent, such
successor Lead Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Lead Agent, and the retiring Lead Agent shall
be discharged from its duties and obligations hereunder first accruing or
arising after the effective date of such retirement. After any retiring Lead
Agent's resignation or removal hereunder as Lead
92
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Lead Agent.
SECTION 7.9. Lead Agent's Fee. The Borrower shall pay to the Lead Agent
for its own account fees in the amounts and at the times previously agreed upon
between the Borrower and the Lead Agent.
SECTION 7.10. Copies of Notices. Lead Agent shall deliver to each Bank a
copy of any notice sent to the Borrower by Lead Agent in connection with the
performance of its duties as Lead Agent hereunder.
ARTICLE VIII.
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Euro-Dollar
Borrowing or Money Market LIBOR Borrowing:
(a) the Lead Agent determines that adequate and fair means do not exist
for ascertaining the London Interbank Offered Rate; or
(b) the Required Banks in the case of Euro-Dollar Loans or the applicable
Bank or Designated Lender, as the case may be, in the case of Money Market LIBOR
Loans, advises the Lead Agent that the Adjusted London Interbank Offered Rate or
London Interbank Offered Rate, as the case may be, as determined by the Lead
Agent will not adequately and fairly reflect the cost to such Banks of funding
their Euro-Dollar Loans or Money Market LIBOR Loans, as the case may be, for
such Interest Period,
then the Lead Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Lead Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligations of
the Banks to make Euro-Dollar Loans or Money Market LIBOR Loans, as the case may
be, shall be suspended. Unless the Borrower notifies the Lead Agent at least two
(2) Domestic Business Days before the date of any Euro-Dollar Borrowing or Money
Market LIBOR Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, (i) if such Borrowing is a Committed
Borrowing, such Borrowing shall instead be made as a Base Rate Borrowing and
(ii) if such Borrowing is a Money Market LIBOR Borrowing, the Money Market LIBOR
Loans comprising such Borrowing shall bear interest for each day from and
including the first day to but excluding the last day of the Interest Period
applicable thereto at the Base Rate for such day.
93
SECTION 8.2. Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
existing applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office or Money Market
Lending Office, as the case may be) with any request or directive (whether or
not having the force of law) of any such Governmental Authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office or Money Market Lending Office, as the case may be)
to make, maintain or fund its Euro-Dollar Loans or Money Market LIBOR Loans and
such Bank shall so notify the Lead Agent, the Lead Agent shall forthwith give
notice thereof to the other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Lead Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank to make Euro-Dollar
Loans or Money Market LIBOR Loans shall be suspended. With respect to
Euro-Dollar Loans, Money Market LIBOR Loans, before giving any notice to the
Lead Agent pursuant to this Section, such Bank shall designate a different
Euro-Dollar Lending Office, Money Market Lending office, as the case may be, if
such designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and fund any of
its outstanding Euro-Dollar Loans or Money Market LIBOR Loans (as the case may
be) to maturity and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount of each such
Euro-Dollar Loan or Money Market LIBOR Loan, together with accrued interest
thereon. Concurrently with prepaying each such Euro-Dollar Loan or Money Market
LIBOR Loan, the Borrower shall borrow a Base Rate Loan in an equal principal
amount from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans or Money Market LIBOR Loan
of the other Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.3. Increased Cost and Reduced Return.
---------------------------------
(a) If, after (x) the date hereof, in the case of any Committed Loan or
any obligation to make Committed Loans or (y) the date of the applicable Money
Market Quote, in the case of any Money Market Loan or (z) the date of the
request for a Letter of Credit, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any Governmental
94
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable agency shall
impose, modify or deem applicable any reserve (including, without limitation,
any such requirement imposed by the Federal Reserve Board (but excluding with
respect to any Euro-Dollar Loan any such requirement reflected in an applicable
Euro-Dollar Reserve Percentage)), special deposit, insurance assessment or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Applicable Lending Office) or shall impose
on any Bank (or its Applicable Lending Office) or on the London interbank market
any other condition affecting its Euro-Dollar Loans or Money Market LIBOR Loans,
its Note, any Letter of Credit or participations therein or its obligation to
make Euro-Dollar Loans or Money Market LIBOR Loans or to issue, amend, renew,
extend or participate in Letters of Credit, and the result of any of the
foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining or participating in any Euro-Dollar Loan, Money
Market LIBOR Loan or Letter of Credit, or to reduce the amount of any sum
received or receivable by such Bank (or its Applicable Lending Office) under
this Agreement or under its Note or in respect of Letter of Credit (or
participation therein) with respect thereto, by an amount deemed by such Bank to
be material, then, within fifteen (15) days after demand by such Bank (with a
copy to the Lead Agent), which demand shall be accompanied by a certificate
showing, in reasonable detail, the calculation of such amount or amounts, and
provided such Bank is generally exercising rights similar to those set forth in
this Section 8.3(a) against other borrowers similarly situated to the Borrower,
the Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to
95
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within fifteen (15) days after demand by such Bank (with a copy to
the Lead Agent), which demand shall be accompanied by a certificate showing, in
reasonable detail, the calculation of such amount or amounts, and provided such
Bank is generally exercising rights similar to those set forth in this Section
8.3(b) against other borrowers similarly situated to the Borrower, the Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Lead Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be prima facie evidence of the
matters certified therein. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 8.4. Taxes.
-----
(a) Any and all payments by the Borrower to or for the account of any
Bank or the Lead Agent hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Lead Agent, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank or the Lead Agent (as the
case may be) is organized or any political subdivision thereof and, in the case
of each Bank, taxes imposed on its income, and franchise or similar taxes
imposed on it, by the jurisdiction of such Bank's Applicable Lending Office or
any political subdivision thereof (and, if different from the jurisdiction of
such Bank's Applicable Lending Office, the jurisdiction of the domicile of its
Loans either established by the Bank pursuant to Section 9.12 or determined by
the applicable taxing authorities) (all such nonexcluded taxes, duties, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder or under any Note or in
connection with any Letter of Credit or participation therein to any Bank or the
Lead Agent, (i) the sum payable shall be increased as necessary so that after
making all
96
required deductions (including deductions applicable to additional sums payable
under this Section 8.4) such Bank or the Lead Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Lead Agent, at its address referred to in Section 9.1, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
in connection with any Letter of Credit or participation therein or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note or in connection with any Letter of Credit or participation therein
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Bank and the Lead Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.4) paid by such Bank or the Lead Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto. Any payment required under this indemnification shall be
made within fifteen (15) days from the date such Bank or the Lead Agent (as the
case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service Forms W-8ECI or W-8BEN, as appropriate,
or any successor form prescribed by the Internal Revenue Service, certifying
that such Bank is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding tax on payments
of interest or certifying that the income receivable pursuant to this Agreement
is effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first became a
party to this Agreement or at any time thereafter (other than solely by reason
of a change in United States law or a change in the terms of any treaty to which
the United States is a party after the date hereof) indicates a United States
interest withholding tax rate in excess of zero (or would have indicated such a
withholding tax rate if such form had been submitted and completed accurately
and completely and either was not submitted or was not completed accurately and
completely), or if a Bank otherwise is subject to United States interest
withholding tax at a rate in excess of zero at any time for any reason (other
than solely by reason of a change in United States law or regulation or a change
in any treaty to which the United States is a party
97
after the date hereof), withholding tax at such rate shall be considered
excluded from "Taxes" as defined in Section 8.4(a). In addition, any amount that
otherwise would be considered "Taxes" or "Other Taxes" for purposes of this
Section 8.4 shall be excluded therefrom if the applicable Bank either has
transferred the domicile of its Loans pursuant to Section 9.12 or changed the
Applicable Lending Office with respect to such Loans and such amount would not
have been incurred had such transfer or change not been made.
(e) For any period with respect to which a Bank required to do so has
failed to provide the Borrower with the appropriate form pursuant to Section
8.4(d) (unless such failure is due to a change in treaty, law or regulation
occurring subsequent to the date on which a form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section
8.4(a) with respect to Taxes imposed by the United States; provided, however,
that should a Bank, which is otherwise exempt from or subject to a reduced rate
of withholding tax, become subject to Taxes because of its failure to deliver a
form required to be delivered hereunder, the Borrower shall take such steps as
such Bank shall reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 8.4, then (i) such Bank will change
the jurisdiction of its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if such change, in the
judgment of such Bank, is not otherwise disadvantageous to such Bank or (ii) in
the event that such Bank shall fail or refuse to change the jurisdiction of its
Applicable Lending Office within twenty (20) Domestic Business Days after
written notice from the Borrower and no Event of Default shall then exist, the
Borrower shall have the right to either (A) designate an Assignee for such Bank
reasonably acceptable to the Lead Agent, which Bank shall assign and transfer to
such Assignee all of such Bank's rights and obligations under this Agreement at
a purchase price mutually acceptable to such Bank and such Assignee or (B)
prepay the principal amount outstanding under the Note held by such Bank,
together with all accrued and unpaid interest thereon and all other sums owed by
98
Borrower to such Bank hereunder and under the other Loan Documents, whereupon
the Commitment of such Bank shall be reduced to zero.
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans.
If (i) the obligation of any Bank to make Euro-Dollar Loans has been suspended
pursuant to Sections 8.1 or 8.2 or (ii) any Bank has demanded compensation under
Section 8.3 or 8.4 with respect to its Euro-Dollar Loans and the Borrower shall,
by at least five (5) Euro-Dollar Business Days' prior notice to such Bank
through the Lead Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Borrower that
the circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) all Loans which would otherwise be made by such Bank as Euro-Dollar
Loans shall be made instead as Base Rate Loans (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Banks); and
(b) after each of its Euro-Dollar Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Loans shall
be applied to repay its Base Rate Loans instead.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower, at its address or telecopy number set forth on the
signature pages hereof, together with copies thereof to Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, Old Federal Reserve Bank Building, 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Xx., Esq., Telephone:
(000) 000-0000, Telecopy: (000) 000-0000; and in the case of the Lead Agent,
Issuing Bank or Swing Lender, to it at JPMorgan Chase Bank, 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxxxx, Telephone:
(000) 000-0000, Telecopy: (000) 000-0000, with a copy to JPMorgan Chase Bank,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxx, Esq.,
Telephone: (000) 000-0000, Telecopy: (000) 000-0000, and a copy to Xxxxxxx Xxxx
LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx, Esq., Telephone: (000) 000-0000, Telecopy: (000) 000-0000; (y) in the
case of any Bank, at its address or telecopy number set forth on the signature
pages hereof or in its Administrative Questionnaire; or (z) in the case of any
99
party, such other address or telecopy number as such party may hereafter specify
for the purpose by notice to the Lead Agent, the Banks and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by
telecopy, when the sender receives confirmation that such telecopy has been
transmitted to the telecopy number specified in this Section, (ii) if given by
United States mail, 72 hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid or (iii) if given by
any other means, when delivered at the address specified in this Section;
provided that notices to the Lead Agent under Article II or Article VIII shall
not be effective until received.
SECTION 9.2. No Waivers. No failure or delay by the Lead Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.3. Expenses: Indemnification.
-------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses of
the Lead Agent (including, without limitation, reasonable fees and disbursements
of special counsel Xxxxxxx Xxxx LLP, local counsel for the Lead Agent, and
travel, site visits, third party reports, mortgage recording taxes and
environmental and engineering expenses), in connection with the preparation and
administration of this Agreement, the other Loan Documents and the documents and
instruments referred to therein, the syndication of the Loans, any waiver or
consent hereunder or any amendment or modification hereof or any Default, Event
of Default or alleged Default or Event of Default and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurred by the Lead Agent and each
Bank, including, without limitation, reasonable fees and disbursements of
counsel for the Lead Agent and the Banks, in connection with the enforcement of
the Loan Documents and the instruments referred to therein and such Event of
Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower agrees to indemnify the Lead Agent and each Bank, their
respective Affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the
100
reasonable fees and disbursements of counsel and settlements and settlement
costs, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) that may at any time (including,
without limitation, at any time following the payment of the Obligations) be
imposed on, asserted against or incurred by any Indemnitee as a result of, or
arising out of, or in any way related to or by reason of, (i) any of the
transactions contemplated by the Loan Documents or the execution, delivery or
performance of any Loan Document (including, without limitation, the Borrower's
actual or proposed use of proceeds of the Loans or use of any of the Letters of
Credit, whether or not in compliance with the provisions hereof), (ii) any
violation by the Borrower or the Environmental Affiliates of any applicable
Environmental Law, (iii) any Environmental Claim arising out of the management,
use, control, ownership or operation of property or assets by the Borrower or
any of the Environmental Affiliates, including, without limitation, all onsite
and offsite activities involving Material of Environmental Concern, (iv) the
breach of any environmental representation or warranty set forth herein, (v) the
grant to the Lead Agent and the Banks of any Lien on any property or assets of
the Borrower or any stock or other equity interest in the Borrower, and (vi) the
exercise by the Lead Agent and the Banks of their rights and remedies
(including, without limitation, foreclosure) under any agreements creating any
such Lien (but excluding, as to any Indemnitee, any such losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements to the extent incurred by reason of (i) the gross
negligence or willful misconduct of such Indemnitee as finally determined by a
court of competent jurisdiction or (ii) any investigative, administrative or
judicial proceeding imposed or asserted against any Indemnitee by any bank
regulatory agency or by any equity holder of such Indemnitee). The Borrower's
obligations under this Section shall survive the termination of this Agreement
and the payment of the Obligations.
(c) The Borrower shall pay, and hold the Lead Agent and each of the Banks
harmless from and against, any and all present and future United States stamp,
intangible, recording, transfer and other similar taxes with respect to the
foregoing matters and hold the Lead Agent and each Bank harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Bank) to pay such taxes.
SECTION 9.4. Sharing of Set-Offs. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the
101
continuance of any Event of Default, each Bank is hereby authorized at any time
or from time to time, without presentment, demand, protest or other notice of
any kind to the Borrower or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), other than deposits
held for the benefit of third parties, and any other indebtedness at any time
held or owing by such Bank (including, without limitation, by branches and
agencies of such Bank wherever located) to or for the credit or the account of
the Borrower against and on account of the obligations of the Borrower then due
and payable to such Bank under this Agreement or under any of the other Loan
Documents, including, without limitation, all interests in obligations purchased
by such Bank. Each Bank agrees that if it shall, by exercising any right of
setoff or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest due with respect to any Note held by
it which is greater than the proportion received by any other Bank in respect of
the aggregate amount of principal and interest due with respect to any Note held
by such other Bank, the Bank receiving such proportionately greater payment
shall purchase such participations in the Notes held by the other Banks, and
such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
shall be shared by the Banks pro rata; provided that nothing in this Section
shall impair the right of any Bank to exercise any right of setoff or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness under the
Notes. The Borrower agrees, to the fullest extent that it may effectively do so
under applicable law, that any holder of a participation in a Note, whether or
not acquired pursuant to the foregoing arrangements, may exercise rights of
setoff or counterclaim and other rights with respect to such participation as
fully as if such holder of a participation were a direct creditor of the
Borrower in the amount of such participation.
SECTION 9.5. Amendments and Waivers. Any provision of this Agreement, the
Notes or other Loan Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the Required
Banks (and, if the rights or duties of the Lead Agent or an Issuing Bank are
affected thereby, by the Lead Agent or such Issuing Bank, as the case may be);
provided that no such amendment or waiver shall (i) increase the Commitment of
any Bank without the written consent of such Bank, (ii) reduce the principal
amount of any Loan or Reimbursement Obligation or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of
each Bank affected thereby, (iii) postpone the scheduled date of payment of the
principal
102
amount of any Loan or Reimbursement Obligation, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, or
extend the scheduled expiration date of any Letter of Credit to a date later
than the Maturity Date, without the written consent of each Bank affected
thereby, (iv) change Section 9.4 in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each Bank,
(v) change any of the provisions of this Section or the definition of "Required
Banks" or any other provision hereof specifying the number or percentage of
Banks required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Bank or (vi) release any Guaranty, except as permitted in Section 5.20(b),
without the written consent of each Bank.
In addition, no such amendment or waiver shall, unless signed by the Swing
Lender and each other Bank affected thereby, increase the Swing Loan Commitment,
postpone the date fixed for the termination of the Swing Loan Commitment or
otherwise affect any of its rights or obligations hereunder relating to the
Swing Loan Commitment or the Swing Loans.
Notwithstanding the foregoing, no amendment, waiver or consent shall,
unless in writing and signed by the Designating Lender on behalf of its
Designated Lender affected thereby, (a) subject such Designated Lender to any
additional obligations, (b) reduce the principal of, interest on, or other
amounts due with respect to, the Designated Lender Note made payable to such
Designated Lender, or (c) postpone any date fixed for any payment of principal
of, or interest on, or other amounts due with respect to, the Designated Lender
Note made payable to the Designated Lender.
SECTION 9.6. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
or obligations under this Agreement or the other Loan Documents without the
prior written consent of all Banks (and any such assignment or transfer without
such consent shall be null and void).
(b) Any Bank may at any time grant to one or more banks or other entities
(each a "Participant") participating interests in its Commitment or any or all
of its Loans or Letters of Credit (or participations therein) without the
consent of or notice to the Borrower or the Lead Agent. In the event of any such
grant by a Bank of a participating interest to a Participant, whether or not
upon notice to the Borrower and the Lead Agent, such Bank shall
103
remain responsible for the performance of its obligations hereunder, and the
Borrower and the Lead Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such participation agreement may provide that such
Bank will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii), (iii) or (iv) of Section 9.5 without the consent
of the Participant. The Borrower agrees that each Participant shall, to the
extent provided in its participation agreement, be entitled to the benefits of
Article VIII with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all (in
minimum amounts of not less than Five Million Dollars ($5,000,000) unless (i)
the proposed assignment is of such Bank's entire remaining amount of its
Commitment or (ii) the proposed Assignee is an existing Bank or a Bank
Affiliate, in which case there shall be no minimum assignment amount), of its
rights and obligations under this Agreement, the Notes, the Letters of Credit
and the other Loan Documents, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit B attached hereto executed by such Assignee and such
transferor Bank, with (and subject to) the consent of the Lead Agent and,
provided no Event of Default shall have occurred and be continuing, the
Borrower, which consent in either case shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, (x) consent of neither the Lead Agent
nor the Borrower shall be required for an assignment to an existing Bank or a
Bank Affiliate and (y) so long as no Event of Default shall have occurred and be
continuing, the Lead Agent shall not, without the consent of the Required Banks,
make any assignment that would cause its Commitment and those of its Bank
Affiliates (including any portion thereof subject to a participation) to be less
than $10,000,000 in the aggregate. Consent of the Borrower shall be deemed to
have been given if the Borrower fails to object to a proposed assignment within
five (5) Domestic Business Days of its receipt of a request for approval. Upon
execution and delivery of such instrument and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
104
transferor Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
Bank, the Lead Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note or Notes are issued to the Assignee. In connection
with any such assignment, the transferor Bank shall pay to the Lead Agent an
administrative fee for processing such assignment in the amount of $2,500. If
the Assignee is not incorporated under the laws of the United States or a state
thereof, it shall deliver to the Borrower and the Lead Agent certification as to
exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.4.
(d) Any Bank (each, a "Designating Lender") may at any time designate one
Designated Lender to fund Money Market Loans on behalf of such Designating
Lender subject to the terms of this Section 9.6(d), and the provisions of
Sections 9.6(b) and (c) shall not apply to such designation. No Bank may
designate more than one (1) Designated Lender at a time. The parties to each
such designation shall execute and deliver to the Lead Agent for its acceptance
a Designation Agreement in the form of Exhibit F hereto. Upon such receipt of an
appropriately completed Designation Agreement executed by a Designating Lender
and a designee representing that it is a Designated Lender, the Lead Agent will
accept such Designation Agreement and will give prompt notice thereof to the
Borrower, whereupon, (i) the Borrower shall execute and deliver to the
Designated Lender a Designated Lender Note payable to the order of the
Designated Lender, (ii) from and after the effective date specified in the
Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right (subject to the provisions of Section 2.1(c)) to make
Money Market Loans on behalf of its Designating Lender pursuant to Section
2.1(c) after the Borrower has accepted a Money Market Loan (or portion thereof)
of the Designating Lender, and (iii) the Designated Lender shall not be required
to make payments with respect to any obligations in this Agreement except to the
extent of excess cash flow of such Designated Lender which is not otherwise
required to repay obligations of such Designated Lender which are then due and
payable; provided, however, that regardless of such designation and assumption
by the Designated Lender, the Designating Lender shall be and remain obligated
to the Borrower, the Lead Agent and the Banks for each and every of the
obligations of the Designating Lender and its related Designated Lender with
respect to this Agreement, including, without
105
limitation, any indemnification obligations under Section 7.6 hereof and any
sums otherwise payable to the Borrower by the Designated Lender. Each
Designating Lender shall serve as the administrative agent of the Designated
Lender and shall on behalf of, and to the exclusion of, the Designated Lender:
(i) receive any and all payments made for the benefit of the Designated Lender;
and (ii) give and receive all communications and notices and take all actions
hereunder, including, without limitation, votes, approvals, waivers, consents
and amendments under or relating to this Agreement and the other Loan Documents.
Any such notice, communication, vote, approval, waiver, consent or amendment
shall be signed by the Designating Lender as administrative agent for the
Designated Lender and shall not be signed by the Designated Lender on its own
behalf and shall be binding upon the Designated Lender to the same extent as if
signed by the Designated Lender on its own behalf. The Borrower, the Lead Agent,
and the Banks may rely thereon without any requirement that the Designated
Lender sign or acknowledge the same. No Designated Lender may assign or transfer
all or any portion of its interest hereunder or under any other Loan Document,
other than assignments to the Designating Lender which originally designated
such Designated Lender or otherwise in accordance with the provisions of Section
9.6(b) and (c). The Lead Agent hereby agrees that it will not institute against
any Designated Lender or join any other Person in instituting against any
Designated Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any federal or state bankruptcy or similar law,
until the later to occur of (i) one year and one day after the payment in full
of the latest maturing commercial paper note issued by such Designated Lender
and (ii) the Maturity Date.
(e) Any Bank may at any time assign all .or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(f) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.3 or 8.4 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(g) Any Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.6, disclose to
the assignee or
106
participant or proposed assignee or participant, any information relating to the
Borrower, the Guarantors or any of their respective Affiliates furnished to such
Bank by the Lead Agent or by or on behalf of the Borrower, the Guarantors or any
of their respective Affiliates (the "Information"). Each of the Lead Agent and
the Banks agrees to maintain the confidentiality of the Information, except that
Information may be disclosed (a) upon the occurrence and during the continuance
of an Event of Default, (b) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel, and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (c) to the extent requested by any regulatory
authority, (d) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (e) to any other party to this Agreement,
(f) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (g) subject to an agreement containing provisions substantially the
same as those of this paragraph, to (i) any assignee or participant in, or
prospective assignee of, or participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (h) with the consent of the Borrower, not to be unreasonably
withheld, or (i) to the extent that such Information (x) becomes publicly
available other than as a result of a breach of this paragraph, or (y) becomes
available to the Lead Agent or any Bank on a non-confidential basis from a
source other than the Borrower.
SECTION 9.7. Governing Law; Submission to Jurisdiction.
-----------------------------------------
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this Agreement or any
other Loan Document and any action for enforcement of any judgment in respect
thereof may be brought in the courts of the State of New York or of the United
States for the Southern District of New York, and, by execution and delivery of
this Agreement, the Borrower hereby accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. The Borrower irrevocably
consents to the service of process out of any of the
107
aforementioned courts in any such action or proceeding by the hand delivery, or
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower at its address set forth below. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Agreement or any other Loan Document brought in the courts referred to
above and hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum. Nothing herein shall affect the right of
the Lead Agent, any Bank or any holder of a Note to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Borrower in any other jurisdiction.
SECTION 9.8. Marshaling; Recapture. Neither the Lead Agent nor any Bank
shall be under any obligation to marshal any assets in favor of the Borrower or
any other party or against or in payment of any or all of the Obligations. To
the extent any Bank receives any payment by or on behalf of the Borrower, which
payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to the Borrower
or its estate, trustee, receiver, custodian or any other party under the
Bankruptcy Code or any other bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the obligation
or part thereof which has been paid, reduced or satisfied by the amount so
repaid shall be reinstated by the amount so repaid and shall be included within
the liabilities of the Borrower to such Bank as of the date such initial
payment, reduction or satisfaction occurred.
SECTION 9.9. Counterparts; Integration; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Lead Agent of counterparts
hereof signed by each of the parties hereto (or, in the case of any party as to
which an executed counterpart shall not have been received, receipt by the Lead
Agent in form satisfactory to it of telegraphic or other written confirmation
from such party of execution of a counterpart hereof by such party).
108
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE LEAD AGENT
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Survival. All indemnities set forth herein (including,
without limitation, Sections 2.12, 8.3 and 8.4) shall survive the execution and
delivery of this Agreement and the other Loan Documents and the making and
repayment of the Loans hereunder.
SECTION 9.12. Domicile of Loans and Letters of Credit. Subject to the
provisions of Article VIII, each Bank may transfer and carry its Loans and
Letters of Credit (and participations therein) at, to or for the account of any
domestic or foreign branch office, Subsidiary or Affiliate of such Bank.
SECTION 9.13. Limitation of Liability. No claim may be made by the
Borrower or any other Person against the Lead Agent or any Bank or the
Affiliates, directors, officers, employees, attorneys or agent of any of them
for any consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement or by the other Loan Documents, or
any act, omission or event occurring in connection therewith; and the Borrower
hereby waives, releases and agrees not to xxx upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
SECTION 9.14. Additional Commitment.
---------------------
(a) Borrower shall have a one time right to request that the Lead Agent
obtain additional Commitments (the "Subsequent Additional Commitments") which
shall be in the minimum additional aggregate amount of Ten Million Dollars
($10,000,000) so that the Maximum Facility Amount is equal to an amount up to
Four Hundred Million Dollars ($400,000,000) (such amount, the "Target Facility
Amount"), which request shall be made by the Borrower giving written notice (the
"Subsequent Additional Commitment Notice") to the Lead Agent no later than the
date that is the twenty-four month anniversary of the Closing Date (the
"Syndication Expiration Date") setting forth such details with respect thereto
as are reasonably requested by the Lead Agent (including, without limitation,
the amount (the "Subsequent Additional Commitment Amount") by which the Maximum
Facility Amount is to be increased). Upon receipt of such request, the Lead
Agent shall use commercially reasonable efforts, with the assistance of the
Borrower, to arrange a syndicate of Banks with Commitments (including the
Initial
109
Commitments), aggregating the Target Facility Amount within sixty (60) days
after the Syndication Expiration Date. Notwithstanding anything to the contrary
contained herein no Bank shall be obligated to increase the amount of its
Commitment to an amount that is greater than such Bank's Initial Commitment. The
Borrower's right to request additional Commitments pursuant to this Section 9.14
shall be contingent upon payment of fees to be agreed upon by the Borrower and
the Lead Agent at such time and there being no Default or Event of Default at
the time of such request up to the time of the funding of any Subsequent
Additional Commitments.
(b) Subsequent Additional Commitments shall be offered pro rata to the
Banks party hereto as of the date of the Subsequent Additional Commitment
Notice. Each Bank (each, an "Accepting Bank") that accepts such additional
amount within fifteen (15) days after receipt of an offer from the Lead Agent
therefor may increase its Commitment by a maximum amount (each, a "Commitment
Increase") equal to the product of (x) the Subsequent Additional Commitment
Amount times (y) the percentage that such Bank's Initial Commitment bears to the
Available Facility as of the Closing Date. If any Bank (each, a "Declining
Bank") shall not accept such additional amount within fifteen (15) days after
receipt of an offer therefor from the Lead Agent, (i) such Declining Bank's
Commitment shall remain at an amount equal to its Initial Commitment and (ii)
the Borrower may request (x) any Accepting Bank to further increase its
Commitment by an amount equal to all or any portion of an aggregate amount equal
to each Declining Bank's Commitment Increase or (y) the Lead Agent to submit a
list of proposed bank syndicate members that are not party to this Agreement as
of the date of such request to the Borrower for its review and approval (which
approval shall not be unreasonably withheld or delayed) in order to obtain
additional Commitments such that the Maximum Facility Amount is equal to the
Target Facility Amount; provided, however, notwithstanding anything to the
contrary contained herein, (i) no Bank shall be obligated to increase the amount
of its Commitment to an amount that is greater than such Bank's Initial
Commitment and (ii) the Banks shall not be obligated to increase the Maximum
Facility Amount to an amount that is greater than the Maximum Facility Amount as
of the Closing Date. From and after the Syndication Expiration Date, the Lead
Agent shall have no further obligation to syndicate the Facility or to obtain or
accept any additional Commitments.
SECTION 9.15. CMBS Borrowers. The Borrower has informed the Lead Agent and
the Banks that CalWest intends to form the CMBS Borrowers to enter into the CMBS
Transaction. The Borrower has further informed the Lead Agent and the Banks that
the CMBS Borrowers would be special-purpose entities whose assets and
liabilities would not be
110
substantively consolidated with the assets of the Borrower or CalWest in the
event of a bankruptcy, and that CalWest will be obtaining a legal opinion to
such effect from its counsel. The Lead Agent and the Banks acknowledge and agree
that if the CMBS Borrowers are so formed, and so long as the CMBS Transaction is
in effect and none of the CMBS Borrowers is the Borrower or a Guarantor, (a) the
Lead Agent and the Banks will not take any action to seek or support a
substantive consolidation of the CMBS Borrowers into the Borrower or CalWest in
case of a bankruptcy of the Borrower or CalWest or otherwise and (b) the payment
and performance of the Obligations shall not be an obligation of the CMBS
Borrowers and the Lead Agent and the Banks shall not have recourse to the assets
of the CMBS Borrowers for payment of the Obligations; provided that the
foregoing shall not be deemed to limit the recourse of the Lead Agent and the
Banks to CalWest's direct or indirect equity interests in the CMBS Borrowers.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
111
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CABOT INDUSTRIAL PROPERTIES, L.P., a Delaware
limited partnership
By: Cabot Industrial Trust, a Maryland
real estate investment trust, its
general partner
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
x/x XXXXX Xxxxxxx, LLC
0000 Xxxxxx Xxxxx, Xxxxx X
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
JPMORGAN CHASE BANK, as Lead Agent,
Swing Lender, Issuing Bank and a Bank
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Commitment:
$28,000,000
BANK OF AMERICA, N.A., as Syndication
Agent and a Bank
By: /s/ Xxxxx XxXxxxx
-----------------------------------------
Name: Xxxxx XxXxxxx
Title: Principal
Commitment:
$26,000,000
Address for Notices:
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Mail Code IL1-231-12-18
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx XxXxxxx
Telecopy: (000) 000-0000
BANK ONE, N.A., as Syndication Agent
and a Bank
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Associate Director
Commitment:
$26,000,000
Address for Notices:
Bank One, N.A.
1 Bank One Plaza
14th Floor
Mail Code IL1-0315
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Telecopy: (000) 000-0000
FLEET NATIONAL BANK, as
Documentation Agent and a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Commitment:
$26,000,000
Address for Notices:
Fleet National Bank
000 Xxxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as
Documentation Agent and a Bank
By: /s/ E. Xxxxxx Xxxxx
-----------------------------------------
Name: E. Xxxxxx Xxxxx
Title: Assistant Vice President
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
Commitment:
$26,000,000
Address for Notices:
Commerzbank AG
2 World Financial Center
New York, New York 10281
Attn: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
AMSOUTH BANK
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Commitment:
$21,000,000
Address for Notices:
AmSouth Bank
0000 0xx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
THE BANK OF NEW YORK, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Commitment:
$21,000,000
Address for Notices:
The Bank of New York
0 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Associate
Commitment:
$21,000,000
Address for Notices:
Dresdner Bank AG
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
KEYBANK, N.A.
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
Commitment:
$21,000,000
Address for Notices:
Key Bank, N.A.
000 Xxxxxx Xxxxxx
Mail Code OH-01-27-0839
Xxxxxxxxx, Xxxx 00000
Attn: Xxxx Xxxxx
Telecopy: (000) 000-0000
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
Commitment:
$21,000,000
Address for Notices:
LaSalle Bank, National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx
Telecopy: ________________
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Commitment:
$21,000,000
Address for Notices:
PNC Xxxx, X.X.
0 XXX Xxxxx
000 0xx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
SOUTHTRUST BANK
By: /s/ Xxxxxx X. Xxxxxxxx, XX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx, XX
Title: Commercial Loan Officer
Commitment:
$21,000,000
Address for Notices:
SouthTrust Bank
000 Xxxxx 00xx Xxxxxx
11th Floor
Mail Code A-001-TR-1105
Birmingham, Alabama
Attn: Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------------------
Name: Xxxx X. Xxxx, Xx.
Title: Vice President
Commitment:
$21,000,000
Address for Notices:
Xxxxx Fargo Bank, National Association
Real Estate Finance Group
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxxx
Telecopy: (000) 000-0000
EXHIBIT A
NOTE
----
$________________ February ___, 2002
For value received, CABOT INDUSTRIAL PROPERTIES, L.P., a Delaware limited
partnership (the "Borrower"), promises to pay to the order of
____________________ (the "Bank"), for the account of its Applicable Lending
Office, ______________________ DOLLARS ($___________), or if less, the aggregate
unpaid principal amount of the Loans made by the Bank to the Borrower pursuant
to the Credit Agreement referred to below on the Maturity Date. The Borrower
promises to pay interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Lead
Agent under the Credit Agreement (as defined below).
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Note is one of the [Notes/Designated Lender Notes] referred to in the
Revolving Credit Agreement, dated as of February ___, 2002, among the Borrower,
JPMorgan Chase Bank, as Swing Lender, Issuing Bank and Lead Agent, Bank of
America, N.A. and Bank One, NA, as Syndication Agents, Fleet National Bank and
Commerzbank Aktiengesellschaft, as Documentation Agents, and the Banks party
thereto (as the same may be amended from time to time, the "Credit Agreement").
Capitalized terms used herein but not otherwise defined shall have the meanings
ascribed to them in the Credit Agreement. The terms and conditions of the Credit
Agreement are hereby incorporated in their entirety by reference as though fully
set forth herein. Upon the occurrence of certain Events of Default as more
particularly described in the Credit Agreement, the unpaid principal amount
evidenced by this Note shall become, and upon the occurrence and during the
continuance of certain other Events of Default, such unpaid principal amount may
be
A-1
declared to be, due and payable in the manner, upon the conditions and with the
effect provided in the Credit Agreement.
The Borrower has the right in certain circumstances and the obligation in
certain other circumstances to prepay the whole or part of the principal of this
Note on the terms and conditions specified in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed as
of the date first written above.
CABOT INDUSTRIAL PROPERTIES, L.P., a
Delaware limited partnership
By: Cabot Industrial Trust, a
Maryland real estate investment
trust, its general partner
By: ______________________________
Name:
Title:
A-2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Type of Principal
Date Loan Loan Repaid Maturity Notation
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A-3
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
This Assignment and Assumption Agreement (this "Assignment") is dated as
of _________ ___, ______ among [ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the
"Assignee"), [CABOT INDUSTRIAL PROPERTIES, L.P. (the "Borrower") and JPMORGAN
CHASE BANK, as Lead Agent (the "Lead Agent")].
W I T N E S S E T H
-------------------
WHEREAS, this Assignment relates to the Revolving Credit Agreement dated
as of February ___, 2002 (as amended from time to time, the "Credit Agreement")
among the Borrower, the Assignor, JPMorgan Chase Bank as Swing Lender, Issuing
Bank and Lead Agent, Bank of America, N.A. and Bank One, NA, as Syndication
Agents, Fleet National Bank and Commerzbank Aktiengesellschaft, as Documentation
Agents, and the other Banks party thereto;
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $_________________ and to reimburse the Issuing
Bank for drawings on Letter of Credit;
WHEREAS, Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $______________ are outstanding
at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $________________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee
B-1
hereby accepts such assignment from the Assignor and assumes all of the
obligations of the Assignor under the Credit Agreement to the extent of the
Assigned Amount, including the purchase from the Assignor of the corresponding
portion of the principal amount of the Loans made by the Assignor outstanding at
the date hereof. Upon the execution and delivery hereof by the Assignor, the
Assignee, the Borrower and the Lead Agent and the payment of the amounts
specified in Section 3 hereof required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights, and be obligated
to perform the obligations, of a Bank under the Credit Agreement with a
Commitment in an amount equal to the Assigned Amount, and (ii) the Commitment of
the Assignor shall, as of the date hereof, be reduced by a like amount and the
Assignor released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.(1) It is
understood that facility fees accrued to the date hereof are for the account of
the Assignor and such fees accruing from and including the date hereof are for
the account of the Assignee. Each of the Assignor and the Assignee hereby agrees
that if it receives any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Lead Agent. [This Agreement is
conditioned upon the written consent of the Borrower and the consent of the Lead
Agent pursuant to Section 9.6(c) of the Credit Agreement. The execution of this
Agreement by the Borrower and the Lead Agent is evidence of the required
consents.] Pursuant to Section 9.6(c) the Borrower agrees to execute and deliver
a Note payable to the order of the Assignee to evidence the assignment and
assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or
---------------
/1/ The amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
B-2
statements of the Borrower or any Guarantor, or the validity and enforceability
of the obligations of the Borrower or any Guarantor in respect of the Credit
Agreement or any Note or any other Loan Document. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower and each Guarantor.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the external laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
B-3
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By:_________________________________
Name:
Title:
[ASSIGNEE]
By:_________________________________
Name:
Title:
JPMORGAN CHASE BANK, as Lead Agent
By:_________________________________
Name:
Title:
CONSENTED TO
------------
[IF REQUIRED]:
------------
CABOT INDUSTRIAL PROPERTIES,
L.P.
By: Cabot Industrial Trust, its general
partner
By: ___________________________________
Name:
Title:
B-4
EXHIBIT C
MONEY MARKET QUOTE REQUEST
--------------------------
[Date]
To: JPMorgan Chase Bank
From: Cabot Industrial Properties, L.P. ("Borrower")
Re: Revolving Credit Agreement (as amended from time to time, the "Credit
Agreement"), dated as of February ___, 2002 among Borrower, JPMorgan Chase
Bank as Swing Lender, Issuing Bank and Lead Agent, Bank of America, N.A.
and Bank One, NA, as Syndication Agents, Fleet National Bank and
Commerzbank Aktiengesellschaft, as Documentation Agents, and the Banks
party thereto
We hereby give notice pursuant to Section 2.1(c)(ii) of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing: _______________________
Principal Amount(2) Interest Period(3)
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
The funding of Money Market Loans made in connection with this Money
Market Quote Request [may/may not] be made by Designated Lenders.
We hereby certify that no Default or Event of Default has occurred and is
continuing, or would result from such Money Market Borrowing(s).
---------------
/2/ Amount must be $5,000,000 or a larger integral multiple of $500,000.
/3/ Not less than one month (LIBOR Auction) or not less than 14 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period. Capitalized terms used herein without being defined herein have the
meanings assigned to them in the Credit Agreement.
C-1
Capitalized terms used herein wityhout being defined herein have the
meanings assigned to them in the Credit Agreement.
CABOT INDUSTRIAL PROPERTIES, L.P., a
Delaware limited partnership
By: Cabot Industrial Trust, a Maryland
real estate investment trust, its
general partner
By: ______________________________
Name:
Title:
C-2
EXHIBIT D
INVITATION FOR MONEY MARKET QUOTES
----------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Cabot Industrial Properties, L.P.
(the "Borrower")
Pursuant to Section 2.1(c)(iii) of the Revolving Credit Agreement, dated
as of February ___, 2002 among Borrower, JPMorgan Chase Bank, as Swing Lender,
Issuing Bank and Lead Agent, Bank of America, N.A. and Bank One, NA, as
Syndication Agents, Fleet National Bank and Commerzbank Aktiengesellschaft, as
Documentation Agents, and the Banks party thereto (as amended from time to time,
the "Credit Agreement"), we are pleased on behalf of the Borrower to invite you
to submit Money Market Quotes to the Borrower for the following proposed Money
Market Borrowing(s):
Date of Borrowing: ____________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than 10:00 A.M. (New York
City time) on [date].
Capitalized terms used herein without being defined herein have the
meanings assigned to them in the Credit Agreement.
JPMORGAN CHASE BANK, as Lead Agent
By: ________________________________
Authorized Officer
D-1
EXHIBIT E
MONEY MARKET QUOTE
------------------
To: JPMorgan Chase Bank ("Lead Agent")
Re: Money Market Quote to Cabot Industrial Properties, L.P. (the "Borrower")
In response to your invitation on behalf the Borrower dated ____________,
200___, we hereby make the following Money Market Quote on the following terms:
1. Quoting Bank: ______________________________________________
2. Person to contact at Quoting Bank: ___________________________
3. Date of Borrowing _________________________________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
--------- --------- ------------ --------------------
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed
$________________.]**
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Revolving Credit
Agreement, dated as of February ___, 2002 among Borrower, JPMorgan Chase Bank as
Swing Lender, Issuing Bank and Lead Agent, Bank of America, N.A. and Bank One,
NA, as Syndication Agents, Fleet National Bank and Commerzbank
Aktiengesellschaft, as Documentation Agents, and the Banks party thereto (as
amended from time to time, the "Credit Agreement"), irrevocably obligates us to
make the Money Market Loan(s) for which any offer(s) are accepted, in whole or
in part.
E-1
Capitalized terms used herein without being defined herein have the
meanings assigned to them in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated:________________________ By:___________________________
Authorized Officer
E-2
EXHIBIT F
DESIGNATION AGREEMENT
---------------------
Dated ____________, 200_
Reference is made to that certain Revolving Credit Agreement (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
dated as of February ___, 2002 among Cabot Industrial Properties, L.P. (the
"Borrower"), JPMorgan Chase Bank (the "Lead Agent"), as Swing Lender, Issuing
Bank and Lead Agent, Bank of America, N.A. and Bank One, NA, as Syndication
Agents, Fleet National Bank and Commerzbank Aktiengesellschaft, as Documentation
Agents, and the Banks party thereto. Capitalized terms used herein without being
defined herein have the meanings assigned to them in the Credit Agreement.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNEE] (the "Designee"),
the Lead Agent and the Borrower agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Money Market Loans pursuant to
Section 2.1(c) of the Credit Agreement. Any assignment by Designor to Designee
of its rights to make a Money Market Loan pursuant to such Section 2.1(c) shall
be effective at the time of the funding of such Money Market Loan and not before
such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or any other
instrument or document furnished pursuant thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Document
or any other instrument or document furnished pursuant thereto or (b) the
financial condition of the Borrower or Guarantors or the performance or
observance by the Borrower or Guarantors of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each Loan
Document or any other instrument or document furnished pursuant thereto,
together with copies of the financial statements referred to in Section 4.4 of
the Credit Agreement and delivered pursuant to Section 5.1 of
F-1
the Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Designation Agreement, (b) agrees that it will, independently and without
reliance upon the Lead Agent, the Designor or any other Bank 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 any Loan
Document, (c) confirms that it is a Designated Lender, (d) appoints and
authorizes the Lead Agent to take such action as agent on its behalf and to
exercise such powers and discretion under any Loan Document as are delegated to
the Lead Agent by the terms thereof, together with such powers and discretion as
are reasonably incidental thereto, and (e) agrees to be bound by each and every
provision of each Loan Document and further agrees that it will perform in
accordance with their terms all of the obligations which by the terms of any
Loan Document are required to be performed by it as a Bank, subject to Section
9.6(d) of the Credit Agreement.
4. The Designee hereby appoints the Designor as the Designee's agent and
attorney in fact, and grants to the Designor an irrevocable power of attorney,
to receive payments made for the benefit of Designee under the Credit Agreement,
to deliver and receive all communications and notices under the Credit Agreement
and other Loan Documents and to exercise on the Designee's behalf all rights to
vote and to grant and make approvals, waivers, consents or amendments to or
under the Credit Agreement or other Loan Documents, subject to Section 9.5 of
the Credit Agreement. Any document executed by the Designor on the Designee's
behalf in connection with the Credit Agreement or other Loan Documents shall be
binding on the Designee. The Borrower, the Lead Agent and each of the Banks may
rely on and are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by the Designor
and the Designee, it will be delivered to the Lead Agent. The effective date for
this Designation Agreement (the "Effective Date") shall be the date of receipt
hereof by the Lead Agent, unless otherwise specified on the signature page
hereto.
6. The Lead Agent hereby agrees that it will not institute against the
Designee or join any other Person in instituting against the Designee any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any federal or state bankruptcy or similar law, until the later to occur
of (i) one year and one day after the payment in full of the latest maturing
commercial paper note issued by the Designee and (ii) the Maturity Date.
7. The Designor unconditionally agrees to pay or reimburse the Designee
and save the Designee harmless against all liabilities, obligations,
F-2
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed or asserted
by any of the parties to the Loan Documents against the Designee (except as set
forth in Section 8 below), in its capacity as such, in any way relating to or
arising out of this Designation Agreement or any other Loan Documents or any
action taken or omitted by the Designee hereunder or thereunder; provided that
the Designor shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements if the same results from the Designee's gross
negligence or willful misconduct.
8. Upon such acceptance and recording by the Lead Agent, as of the
Effective Date, the Designee shall be a party to the Credit Agreement with a
right (subject to the provisions of Section 2.1(c)(ii)(E) and Section
2.1(c)(viii) of the Credit Agreement) to make Money Market Loans as a Bank
pursuant to Section 2.1(c) of the Credit Agreement and the rights and
obligations of a Bank related thereto; provided, however, that the Designee
shall not be required to make payments with respect to such obligations except
to the extent of excess cash flow of the Designee which is not otherwise
required to repay obligations of the Designee which are then due and payable.
Notwithstanding the foregoing, the Designor, as administrative agent for the
Designee, shall be and remain obligated to the Borrower, the Lead Agent and the
Banks for each and every one of the obligations of the Designee and the Designor
with respect to the Credit Agreement, including, without limitation, any
indemnification obligations under Section 7.6 of the Credit Agreement and any
sums otherwise payable to the Borrower by the Designee.
9. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
10. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
F-3
IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally
bound, have caused this Designation Agreement to be executed by their officers
thereunto duly authorized as of the date first above written.
Effective Date:
_________________, 200__
[NAME OF DESIGNOR], as Designor
By:_________________________________
Title:______________________________
[NAME OF DESIGNEE] as Designee
By:_________________________________
Title:______________________________
Applicable Lending Office (and address for
notices):
[ADDRESS]
Accepted this ____ day
of ____________, 200__
JPMORGAN CHASE BANK, as Lead Agent
By:_________________________________
Title:______________________________
F-4
EXHIBIT G
GUARANTY OF PAYMENT
-------------------
This GUARANTY OF PAYMENT (this "Guaranty"), is made as of __________ ___,
____, between [NAME OF GUARANTOR], a ____________ _____________, having an
address at _________________ ("Guarantor"), and JPMORGAN CHASE BANK, a New York
banking corporation, having an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as agent ("Lead Agent") for the Banks under that certain Revolving Credit
Agreement dated as of February ___, 2002 (as the same may be amended, modified,
supplemented or restated, the "Credit Agreement") among Cabot Industrial
Properties, L.P., a Delaware limited partnership ("Borrower"), JPMorgan Chase
Bank as Swing Lender, Issuing Bank and Lead Agent, Bank of America, N.A. and
Bank One, NA, as Syndication Agents, Fleet National Bank and Commerzbank
Aktiengesellschaft, as Documentation Agents, and the Banks party thereto.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Credit Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Banks have agreed to make loans and other extensions of
credit to Borrower in the aggregate principal amount not to exceed Three Hundred
Million Dollars ($300,000,000), as such amount may be increased pursuant Section
9.14 of the Credit Agreement (hereinafter collectively referred to as the
"Loans");
WHEREAS, Guarantor is a Subsidiary of [Borrower/CalWest]; and
WHEREAS, in order to induce the Lead Agent and the Banks to enter into the
Loan Documents, Guarantor has agreed to enter into this Guaranty;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Guarantor, on behalf of itself and its successors and assigns, hereby
irrevocably, absolutely and unconditionally guaranties the full and punctual
payment when due, whether at stated maturity or otherwise, of all Obligations of
Borrower now or hereafter existing under the Notes and the Credit Agreement, for
principal and interest as well as any and all other amounts due thereunder,
including, without limitation, all indemnity obligations of Borrower thereunder,
and any and all reasonable costs and
G-1
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by the Lead Agent or the Banks in enforcing their rights
under this Guaranty (all of the foregoing obligations being the "Guaranteed
Obligations"). Guarantor's guaranty hereunder is joint and several with all
other guarantors issuing guaranties pursuant to the Credit Agreement. The
obligations of Guarantor hereunder are independent of the obligations of any
other guarantor or Borrower, and a separate action or actions may be brought and
prosecuted against Guarantor whether or not action is brought against any other
guarantor or Borrower and whether or not any other guarantor or Borrower be
joined in any such action or actions.
2. It is agreed that the Guaranteed Obligations are primary obligations
and this Guaranty shall be enforceable against Guarantor and its successors and
assigns without the necessity for any suit or proceeding of any kind or nature
whatsoever brought by the Lead Agent against Borrower or its respective
successors or assigns or any other party or against any security for the payment
and performance of the Guaranteed Obligations and without the necessity of any
notice of non-payment or non-observance or of any notice of acceptance of this
Guaranty or of any notice or demand to which Guarantor might otherwise be
entitled (including, without limitation, diligence, presentment, notice of
maturity, extension of time, change in nature or form of the Guaranteed
Obligations, acceptance of any security, release of any security, imposition or
agreement arrived at as to the amount of or the terms of the Guaranteed
Obligations, notice of adverse change in Borrower's financial condition and any
other fact which might materially increase the risk to Guarantor), all of which
Guarantor hereby expressly waives; and Guarantor hereby expressly agrees that
the validity of this Guaranty and the obligations of Guarantor hereunder shall
in no way be terminated, affected, diminished, modified or impaired by reason of
the assertion of or the failure to assert by the Lead Agent against Borrower or
its respective successors or assigns, any of the rights or remedies reserved to
the Lead Agent pursuant to the provisions of the Loan Documents. Guarantor
agrees that any notice or directive given at any time to the Lead Agent which is
inconsistent with the waiver in the immediately preceding sentence shall be void
and may be ignored by the Lead Agent, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Lead Agent has specifically agreed otherwise
in a writing, signed by a duly authorized officer. Guarantor specifically
acknowledges and agrees that the foregoing waivers are of the essence of this
transaction and that, but for this Guaranty and such waivers, the Lead Agent and
the Banks would decline to execute or accept the Loan Documents.
G-2
3. Guarantor waives, and covenants and agrees that it will not at any
time insist upon, plead or in any manner whatsoever claim or take the benefit or
advantage of, any and all appraisal, valuation, stay, extension, marshaling of
assets or redemption laws, for right of homestead or exemption, whether now or
at any time hereafter in force, which may delay, prevent or otherwise affect the
performance by Guarantor of its obligations under, or the enforcement by the
Lead Agent of, this Guaranty. Guarantor further covenants and agrees not to set
up or claim any defense, counterclaim, offset, set-off or other objection of any
kind to any action, suit or proceeding at law, in equity or otherwise, or to any
demand or claim that may be instituted or made by the Lead Agent other than the
defense of the actual timely payment and performance by Borrower of the
Guaranteed Obligations; provided, however, that the foregoing shall not be
deemed a waiver of Guarantor's right to assert any compulsory counterclaim, if
such counterclaim is compelled under local law or rule of procedure, nor shall
the foregoing be deemed a waiver of Guarantor's right to assert any claim that
would constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against Lead Agent or any Bank in any separate action or proceeding,
but Guarantor, in asserting any such claim, irrevocably waives any and all
right, if any, to claim or recover against Lead Agent or any Bank any special,
exemplary, punitive or consequential damages, or any damages other than actual
damages. Guarantor represents, warrants and agrees that, as of the date hereof,
its obligations under this Guaranty are not subject to any counterclaims,
offsets or defenses against the Lead Agent or any Bank of any kind.
4. The provisions of this Guaranty are for the benefit of the Lead Agent
and the Banks and their successors and permitted assigns, and nothing herein
contained shall impair as between Borrower and the Lead Agent and the Banks the
obligations of Borrower under the Loan Documents.
5. This Guaranty shall be a continuing, irrevocable, unconditional and
absolute guaranty and the liability of Guarantor hereunder shall in no way be
terminated, affected, modified, impaired or diminished by reason of the
happening, from time to time, of any of the following, without notice to or the
further consent of Guarantor:
(a) any assignment, amendment, modification or waiver of or change
in any of the terms, covenants, conditions or provisions of any of the
Guaranteed Obligations or the Loan Documents or the invalidity or
unenforceability of any of the foregoing; or
(b) any extension of time that may be granted by the Lead Agent or
any Bank to Borrower, any guarantor, or their respective successors or
assigns, heirs, executors, administrators or personal representatives; or
G-3
(c) any action which the Lead Agent or any Bank may take or fail to
take under or in respect of any of the Loan Documents or by reason of any
waiver of, or failure to enforce any of the rights, remedies, powers or
privileges available to the Lead Agent under this Guaranty or available to
the Lead Agent or any Bank at law, in equity or otherwise, or any action
on the part of the Lead Agent or any Bank granting indulgence or extension
in any form whatsoever; or
(d) any sale, exchange, release, or other disposition of, or any
impairment of or failure to perfect any security interest in, any property
pledged, mortgaged or conveyed, or any property in which the Lead Agent or
the Banks have been granted a lien or security interest to secure any
indebtedness of Borrower to the Lead Agent or the Banks; or
(e) any release of any Person who may be liable in any manner for the
payment and collection of any amounts owed by Borrower to the Lead Agent
or the Banks; or
(f) the application of any sums by whomsoever paid or however
realized to any amounts owing by Borrower to the Lead Agent or the Banks
under the Loan Documents in such manner as the Lead Agent shall determine
in its sole discretion; or
(g) Borrower's or any guarantor's voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee, receiver,
liquidator, sequestrator or conservator for all or any part of Borrower's
or Guarantor's or any other guarantor's assets, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment, or the commencement of other similar
proceedings affecting Borrower or any guarantor or any of the assets of
any of them, including, without limitation, (i) the release or discharge
of Borrower or any guarantor from the payment and performance of their
respective obligations under any of the Loan Documents by operation of
law, or (ii) the impairment, limitation or modification of the liability
of Borrower or any guarantor in bankruptcy, or of any remedy for the
enforcement of the Guaranteed Obligations under any of the Loan Documents,
or Guarantor's liability under this Guaranty, resulting from the operation
of any present or future provisions of the Bankruptcy Code or other
present
G-4
or future federal, state or applicable statute or law or from the decision
in any court; or
(h) any improper disposition by Borrower of any Letters of Credit or
the proceeds of the Loans, it being acknowledged by Guarantor that the
Lead Agent or any Bank shall be entitled to honor any request made by
Borrower for a disbursement of such proceeds and that neither the Lead
Agent nor any Bank shall have any obligation to see to the proper
disposition by Borrower of such proceeds; or
(i) any invalidity, irregularity or unenforceability of all or any
part of the Guaranteed Obligations with respect to any other guarantor.
6. Guarantor agrees that if at any time all or any part of any payment at
any time received by the Lead Agent or any Bank from Borrower or Guarantor under
or with respect to this Guaranty or from any other obligor in respect of the
Guaranteed Obligations is or must be rescinded or returned by the Lead Agent or
any Bank for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of Borrower or Guarantor or such other
obligor), then Guarantor's obligations hereunder shall, to the extent of the
payment rescinded or returned, be deemed to have continued in existence
notwithstanding such previous receipt by such party, and Guarantor's obligations
hereunder shall continue to be effective or shall be reinstated, as the case may
be, as to such payment, as though such previous payment had never been made.
7. Until this Guaranty is terminated pursuant to the terms hereof,
Guarantor (i) shall have no right of subrogation against Borrower or any entity
comprising same or against any other guarantor by reason of any payments or acts
of performance by Guarantor in compliance with the obligations of Guarantor
hereunder, (ii) waives any right to enforce any remedy which Guarantor now or
hereafter shall have against Borrower or any entity comprising same or against
any other guarantor by reason of any one or more payments or acts of performance
in compliance with the obligations of Guarantor hereunder and (iii) from and
after an Event of Default, subordinates any liability or indebtedness of
Borrower or any entity comprising same or of any other guarantor now or
hereafter held by Guarantor or any affiliate of Guarantor to the obligations of
Borrower under the Loan Documents.
G-5
8. Guarantor represents and warrants to the Lead Agent and the Banks with
the knowledge that the Lead Agent and the Banks are relying upon the same, as
follows:
(a) as of the date hereof, Guarantor is a Subsidiary of
[Borrower/CalWest];
(b) based upon such relationship, Guarantor has determined that it is
in its best interests to enter into this Guaranty;
(c) this Guaranty is necessary and convenient to the conduct,
promotion and attainment of Guarantor's business, and is in furtherance of
Guarantor's business purposes;
(d) the benefits to be derived by Guarantor from Borrower's access to
funds made possible by the Loan Documents are at least equal to the
obligations undertaken pursuant to this Guaranty;
(e) Guarantor is Solvent and has full power and legal right to enter
into this Guaranty and to perform its obligations under the terms hereof
and (i) Guarantor is organized and validly existing under the laws of the
State of __________, (ii) Guarantor has complied with all provisions of
applicable law in connection with all aspects of this Guaranty, and (iii)
the person executing this Guaranty has all the requisite power and
authority to execute and deliver this Guaranty;
(f) to the best of Guarantor's knowledge, there is no action, suit,
proceeding, or investigation pending or threatened against or affecting
Guarantor at law, in equity, in admiralty or before any arbitrator or any
Governmental Authority (domestic or foreign) which is likely to materially
and adversely impair the ability of Guarantor to perform its obligations
under this Guaranty;
(g) the execution and delivery of and the performance by Guarantor of
its obligations under this Guaranty have been duly authorized by all
necessary action on the part of Guarantor and do not (i) violate any
provision of any law, rule, regulation (including, without limitation,
Regulation U or X of the Board of Governors of the Federal Reserve System
of the United States), order, writ, judgment, decree, determination or
award presently in effect having applicability to Guarantor or the
organizational documents of Guarantor the consequences of which violation
are likely to materially and adversely impair the ability of Guarantor to
perform its obligations under this Guaranty or (ii) violate or conflict
with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under
G-6
any indenture, agreement or other instrument to which Guarantor is a
party, or by which Guarantor or any of its property is bound the
consequences of which violation, conflict, breach or default are likely to
materially and adversely impair the ability of Guarantor to perform its
obligations under this Guaranty;
(h) this Guaranty has been duly executed by Guarantor and constitutes
the legal valid and binding obligation of Guarantor, enforceable against
it in accordance with its terms, except as such enforceability may be
limited by applicable insolvency, bankruptcy or other laws affecting
creditors' rights generally or general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law;
(i) no authorization, consent, approval, license or formal exemption
from, nor any filing, declaration or registration with, any Governmental
Authority is required in connection with the making and performance by
Guarantor of this Guaranty, except those which have already been obtained
and are in full force and effect;
(j) Guarantor is not an "investment company" as that term is defined
in, nor is it otherwise subject to regulation under, the Investment
Company Act of 1940, as amended; and
(k) all of the representations and warranties in the Credit Agreement
relating to Guarantor are true and correct.
9. By executing and delivering this Guaranty, Guarantor hereby agrees
that it shall be bound by, and shall comply with, all warranties and covenants
applicable to it set forth in the Credit Agreement.
10. Guarantor and the Lead Agent each acknowledge and agree that this
Guaranty is a guarantee of payment and performance and not of collection and
enforcement in respect of any obligations which may accrue to the Lead Agent or
the Banks from Borrower under the provisions of any Loan Document.
11. Subject to the terms and conditions of the Credit Agreement, and in
conjunction therewith, the Lead Agent or any Bank may assign any or all of its
rights under this Guaranty. In the event of any such assignment, the Lead Agent
shall give Guarantor prompt notice of same. If the Lead Agent or any Bank elects
to sell all the Loans, Letters of Credit or participations therein and in the
Loan Documents, including this Guaranty, the Lead Agent or any Bank may forward
to each purchaser and participant and prospective purchaser and participant all
documents and information
G-7
relating to this Guaranty or to Guarantor, whether furnished by Borrower or
Guarantor or otherwise, subject to the terms and conditions of the Credit
Agreement.
12. Guarantor agrees, upon the written request of the Lead Agent, to
execute and deliver to the Lead Agent, from time to time, any modification or
amendment hereto or any additional instruments or documents reasonably
considered necessary by the Lead Agent or its counsel to cause this Guaranty to
be, become or remain valid and effective in accordance with its terms, provided,
that, any such modification, amendment, additional instrument or document shall
not increase Guarantor's obligations or diminish its rights hereunder and shall
be reasonably satisfactory as to form to Guarantor and to Guarantor's counsel.
13. The representations and warranties of Guarantor set forth in this
Guaranty shall survive until this Guaranty shall terminate in accordance with
the terms hereof.
14. This Guaranty contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior agreements
relating to such subject matter.
15. It is the intention and agreement of Guarantor, the Lead Agent and the
Banks that the obligations of Guarantor under this Guaranty shall be valid and
enforceable against Guarantor to the maximum extent permitted by applicable law.
Accordingly, if any provision of this Guaranty creating any obligation of
Guarantor in favor of the Lead Agent and the Banks shall be declared to be
invalid or unenforceable in any respect or to any extent, it is the stated
intention and agreement of Guarantor, the Lead Agent and the Banks that any
balance of the obligation created by such provision and all other Guaranteed
Obligations shall remain valid and enforceable. Likewise, if by final order a
court of competent jurisdiction shall declare any sums which the Lead Agent or
the Banks may be otherwise entitled to collect from Guarantor under this
Guaranty to be in excess of those permitted under any law (including any federal
or state fraudulent conveyance or like statute or rule of law) applicable to
Guarantor's obligations under this Guaranty, it is the stated intention and
agreement of Guarantor, the Lead Agent and the Banks that all sums not in excess
of those permitted under such applicable law shall remain fully collectible by
the Lead Agent and the Banks from Guarantor.
16. This Guaranty may be executed in counterparts which together
shall constitute the same instrument.
17. All notices, requests and other communications to any party hereunder
shall be in writing (including bank wire or facsimile transmission followed by
telephonic confirmation or similar writing) and shall be
G-8
addressed to such party at the address set forth below or to such other address
as may be identified by any party in a written notice to the others:
If to Guarantor: ______________________
c/o RREEF America L.L.C.
0000 Xxxxxx Xx., Xxxxx X
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
With Copies of
Notices to
Guarantor to: Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
Old Federal Reserve Bank Building
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Xx., Esq.
Facsimile No.: (000) 000-0000
If to the Lead
Agent: JPMorgan Chase Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
Copies of
Notices to the
Lead Agent to: JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if
given by facsimile transmission, when such facsimile is transmitted to the
facsimile number specified in this Section and the appropriate facsimile
confirmation is received, (ii) if given by certified or registered mail, return
receipt requested, with first class postage prepaid, addressed as aforesaid,
upon receipt or refusal to accept delivery, (iii) if given by a nationally
recognized overnight carrier, 24 hours after such communication is deposited
with such carrier with postage prepaid for next day delivery, or (iv) if given
by any other means, when delivered at the address specified in this Section.
G-9
18. Any acknowledgment or new promise, whether by payment of principal or
interest or otherwise by Borrower or Guarantor, with respect to the Guaranteed
Obligations shall, if the statute of limitations in favor of Guarantor against
the Lead Agent shall have commenced to run, toll the running of such statute of
limitations, and if the period of such statute of limitations shall have
expired, prevent the operation of such statute of limitations.
19. This Guaranty shall be binding upon Guarantor and its successors and
assigns and shall inure to the benefit of the Lead Agent and the Banks and their
successors and permitted assigns.
20. The failure of the Lead Agent to enforce any right or remedy
hereunder, or promptly to enforce any such right or remedy, shall not constitute
a waiver thereof, nor give rise to any estoppel against the Lead Agent, nor
excuse Guarantor from its obligations hereunder. Any waiver of any such right or
remedy to be enforceable against the Lead Agent must be expressly set forth in a
writing signed by the Lead Agent.
21. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this Guaranty and
any action for enforcement of any judgment in respect thereof may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York and, by execution and
delivery of this Guaranty, the Guarantor hereby accepts for itself and in
respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts from any
thereof. The Guarantor irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage
prepaid, to the Guarantor at its address for notices set forth herein. The
Guarantor hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty brought in
the courts referred to above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient
forum. Nothing herein shall affect the right of the Lead Agent to serve
process in any other manner permitted by law or to
G-10
commence legal proceedings or otherwise proceed against the Guarantor in
any other jurisdiction.
(c) GUARANTOR HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY AND
ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY.
IT IS HEREBY ACKNOWLEDGED BY GUARANTOR THAT THE WAIVER OF A JURY TRIAL IS
A MATERIAL INDUCEMENT FOR THE LEAD AGENT TO ACCEPT THIS GUARANTY AND THAT
THE LOANS MADE AND LETTERS OF CREDIT ISSUED BY THE BANKS ARE MADE OR
ISSUED IN RELIANCE UPON SUCH WAIVER. GUARANTOR FURTHER WARRANTS AND
REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE,
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION,
THIS GUARANTY MAY BE FILED BY THE AGENT IN COURT AS A WRITTEN CONSENT TO A
NON-JURY TRIAL.
(d) Guarantor does hereby further covenant and agree to and with the
Lead Agent that Guarantor may be joined in any action against Borrower in
connection with the Loan Documents and that recovery may be had against
Guarantor in such action or in any independent action against Guarantor
(with respect to the Guaranteed Obligations), without the Lead Agent first
pursuing or exhausting any remedy or claim against Borrower or its
successors or assigns. Guarantor also agrees that, in an action brought
with respect to the Guaranteed Obligations in any jurisdiction, it shall
be conclusively bound by the judgment in any such action by the Lead Agent
(wherever brought) against Borrower or its successors or assigns, as if
Guarantor were a party to such action, even though Guarantor was not
joined as parties in such action.
(e) Guarantor agrees to pay all reasonable expenses (including,
without limitation, attorneys' fees and disbursements) which may be
incurred by the Lead Agent or the Banks in connection with the enforcement
of their rights under this Guaranty, whether or not suit is initiated.
22. Notwithstanding anything to the contrary contained herein (except
Section 6), this Guaranty shall terminate and be of no further force or effect
upon the full performance and payment of the Guaranteed Obligations hereunder.
Upon termination of this Guaranty in accordance with the terms of this Guaranty,
the Lead Agent promptly shall deliver to
G-11
Guarantor such documents as Guarantor or Guarantor's counsel reasonably may
request in order to evidence such termination.
23. All of the Lead Agent's and each Bank's rights and remedies under each
of the Loan Documents or under this Guaranty are intended to be distinct,
separate and cumulative and no such right or remedy therein or herein mentioned
is intended to be in exclusion of or a waiver of any other right or remedy
available to the Lead Agent or the Banks.
24. Subject to Section 5.20 of the Credit Agreement: (i) this Guaranty
shall not be amended except as permitted pursuant to Section 9.5 of the Credit
Agreement, and (ii) Guarantor shall not assign or otherwise transfer any of its
rights or obligations under this Guaranty without the prior written consent of
all Banks (and any such assignment or transfer without such consent shall be
null and void).
G-12
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Guaranty as of the date and year first above written.
GUARANTOR:
[NAME OF GUARANTOR]
By:______________________________________
Name:
Title:
ACCEPTED:
JPMORGAN CHASE BANK,
as Lead Agent
By: _______________________________
Name:
Title:
G-13
SCHEDULE G
----------
List of Subsidiary Guarantors
-----------------------------
Delaware Subsidiaries:
---------------------
1. Cabot Industrial Properties Holding, Inc.
2. CIT Xxxxxxxx Drive, LLC
3. XX Xxxxxx Newark, LLC
4. Xxxxxxx Street Holdings, LLC
5. San Xxxxxxxx Road Holdings, LLC
6. Cabot Ventures, LLC
7. Cabot Ventures, II, LLC
8. CIT Guilford Drive, LLC
9. Cabot Dulles Town Crossing
10. Cabot Advisors, Inc.
11. CalWest Texas Properties, L.P.
Maryland Subsidiaries:
---------------------
12. Annapolis Junction Land Limited Partnership
13. Guilford Property, LLC
14. BWI Warehouse #4 Limited Partnership
15. Bristol Property LLC
16. GR-6 Limited Partnership
17. GR-7 Limited Partnership
18. Port Capital Center LLP
19. West Nursery Land Holding Limited Partnership
20. Linthicum Property, LLC
21. Fontana Property 6, LLC
22. Fontana Property 7, LLC
Virginia Subsidiaries:
---------------------
23. CIT Greenwood Place Limited Partnership
24. CIT Xxxxxxx Place Limited Partnership
Georgia Subsidiary
------------------
25. Xxxxxxx Business Center LLC
California Subsidiary
---------------------
26. CIT Xxxxxxx Drive Limited Partnership
SCHEDULE U
----------
UNENCUMBERED ASSET POOL PROPERTIES
Property Address City State Notes
-----
--------------------------------------------------------------------------------------
1 000 X. 000xx Xxxxxx Xxxxxxxx XX
2 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
3 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
4 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
5 0 Xxxxx 00xx Xxxxxx Xxxxxxxx XX
6 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
7 000 Xxxxx 000xx Xxxxxx Xxxxxxx XX
8 0000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
9 Eastbank 0000 Xxxx Xxxxxxx Xx Xxxxxxx XX
10 Skyharbor - 000 Xxxxx 00xx Xxxxxxx XX Ground Lease
11 0000 X. Xxxxxxxx Xxxxxx Xxxxx XX
12 000 X. 00xx Xxxxxx Xxxxx XX
13 000 X. 00xx Xxxxxx Xxxxx XX
14 0000 X. Xxxxxx Xxxxx Xxxxx XX
15 0000 X. Xxxxxx Xxxxx Xxxxx XX
16 0000 X. Xxxxxx Xxxxx Xxxxx XX
17 0000 XxXxxxxx Xxxxxx Xxxx Xxxx XX
18 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX
19 000 Xxxxx Xxxxxxxxxxx Xxx Xxxxxxx XX
20 0000 Xxxxxxx Xxxxxx Xxxxxxx XX
21 00000 Xxxxxxx Xxxxxx Xxxx xx Xxxxxxxx XX
22 00000 Xxxxxx Xxxxxx Xxxxxxx XX
23 000 Xxxx Xxxx Xxxx Xxxxx Xxx XX
24 0000 X. Xxxxxxx Xxxxxx Xxxxxxx XX
25 000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX
26 0000 Xxxxxx Xxxxxx Xxx Xxxxxxx XX
27 0000 X. Xxx Xxxxxxxx Xx. Xxx Xxxxxxx XX
28 0000 X. Xxx Xxxxxxxx Xx. Xxx Xxxxxxx XX
29 0000 X. Xxx Xxxxxxxx Xx. Xxx Xxxxxxx XX
30 0000 X. Xxxxx Xxxxxx Xxxxxxx XX
31 0000 X. Xxxxx Xxxxxx Xxxxxxx XX
32 0000 X. Xxxxx Xxxxx Xxx Xxxxxx Xxxxxxxxx XX
33 000-000 X. Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxxx XX
34 00000 Xxxxxxx Xxxx. Xx Xxxxxx XX
35 0000 X Xxx Xxxxxxxx Xx Xxxxxxxx XX
36 0000 Xxxxxxx Xxx Xxxxxxxxx XX
37 0000 Xxxxxxx Xxx. Xxxxxxxxx XX
38 0000 Xxxxxxxxxxxx Xxx. Xxxxxxxxx XX
39 0000 X. Xxxxxx Xxx. Xxxxxxx XX
40 0000 X. Xxxxxx Xxx. Xxxxxxx XX
41 00000 Xxxx Xxxxx Xxxxxxxx XX
42 00000 Xxxx Xxxxx Xxxxxxxx XX
43 00000 Xxxx Xxxxx Xxxxxxxx XX
44 0000 Xxxxx Xxxxxx Xxxx Xxxxxx XX
45 0000 Xxxxx Xxxxx Xxxx Xxxxxx XX
46 0000 Xxxxx Xxxxx Xxxx Xxxxxx XX
47 0000-0000 X. Xxx Xxxxxxxx Xxx Xxxxxxx XX
48 0000 X. Xxx Xxxxxxxx Xx. Xxx Xxxxxxx XX
49 0000 X. Xxx Xxxxxxxx Xx. Xxx Xxxxxxx XX
50 00000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX
51 00000 Xxxxxx Xxxxxx Xxxxxxxxxx XX
52 00000 X. 000xx Xxxxxx Xxxxxxxx XX
53 00000 Xxxxxxxxx Xxxxxx Xxxxx Xx Xxxxxxx XX
54 00000 Xxxxxxxxx Xxxxxx Xxxxx Xx Xxxxxxx XX
55 00000 Xxxxxxxxx Xxxxxx Xxxxx Xx Xxxxxxx XX
56 00000 Xxxxxxxxx Xxxxxx Xxxxx Xx Xxxxxxx XX
SCHEDULE U
----------
UNENCUMBERED ASSET POOL PROPERTIES (continued)
Owner
-----------------------------------------------------------------------------
1 Cabot Industrial Properties, L.P.
2 Cabot Industrial Properties, L.P.
3 Cabot Industrial Properties, L.P.
4 Cabot Industrial Properties, L.P.
5 Cabot Industrial Properties, L.P.
6 Cabot Industrial Properties, L.P.
7 Cabot Industrial Properties, L.P.
8 Cabot Industrial Properties, L.P.
9 Cabot Industrial Properties, L.P.
10 Cabot Industrial Properties, L.P.
11 Cabot Industrial Properties, L.P.
12 Cabot Industrial Properties, L.P.
13 Cabot Industrial Properties, L.P.
14 Cabot Industrial Properties, L.P.
15 Cabot Industrial Properties, L.P.
16 Cabot Industrial Properties, L.P.
17 Cabot Industrial Properties, L.P.
18 Cabot Industrial Properties, L.P.
19 Cabot Industrial Properties, L.P.
20 Cabot Industrial Properties, L.P.
00 Xxxxxxx Xxxxxx Holdings, LLC (DE)
22 Cabot Industrial Properties, L.P.
23 Cabot Industrial Properties, L.P.
24 Cabot Industrial Properties, L.P.
25 Cabot Industrial Properties, L.P.
00 Xxx Xxxxxxxx Xxxx Holdings, LLC (DE)
00 Xxx Xxxxxxxx Xxxx Holdings, LLC (DE)
00 Xxx Xxxxxxxx Xxxx Holdings, LLC (DE)
00 Xxx Xxxxxxxx Xxxx Holdings, LLC (DE)
30 Cabot Industrial Properties, L.P.
31 Cabot Industrial Properties, L.P.
32 Cabot Industrial Properties, L.P.
33 Cabot Industrial Properties, L.P.
34 Cabot Industrial Properties, L.P.
00 Xxx Xxxxxxxx Xxxx Holdings, LLC (DE)
36 Cabot Industrial Properties, L.P.
37 Cabot Industrial Properties, L.P.
38 Cabot Industrial Properties, L.P.
39 Cabot Industrial Properties, L.P.
40 Cabot Industrial Properties, L.P.
41 Cabot Industrial Properties, L.P.
42 Cabot Industrial Properties, L.P.
43 Cabot Industrial Properties, L.P.
44 Cabot Industrial Properties, L.P.
45 Cabot Industrial Properties, L.P.
46 Cabot Industrial Properties, L.P.
00 Xxx Xxxxxxxx Xxxx Holdings, LLC (DE)
00 Xxx Xxxxxxxx Xxxx Holdings, LLC (DE)
00 Xxx Xxxxxxxx Xxxx Holdings, LLC (DE)
50 Cabot Industrial Properties, L.P.
51 Cabot Industrial Properties, L.P.
52 Cabot Industrial Properties, L.P.
53 Cabot Industrial Properties, L.P.
54 Cabot Industrial Properties, L.P.
55 Cabot Industrial Properties, L.P.
56 Cabot Industrial Properties, L.P.
SCHEDULE U
----------
UNENCUMBERED ASSET POOL PROPERTIES
Property Address City State Notes
-----
-----------------------------------------------------------------------------------
57 0000-0000 Xxxxxxx Xxx Xxxxxx Xxxxx XX
58 0000 Xxxxxxx Xxx Xxxxxx Xxxxx XX
59 0000 Xxxxxxx Xxx Xxxxxx Xxxxx XX
60 0000 Xxxxxxx Xxx Xxxxxx Xxxxx XX
61 0000 Xxxxxxxx Xxxxxx Xxxxx Xxx XX
62 0000-0000 Xxxxxxxx Xxxxxx Xxxxx Xxx XX
63 0000 Xxxxxxxx Xxxxxx Xxxxx Xxx XX
64 00000 Xxxxxxxxx Xxxx Xxxxxxxxxx Xxxxx XX
65 0000 Xxxxxx Xxxxxxxxx Xxxxx Xxxx XX
66 0000 Xxxxxxx Xxxxx Xxx Xxxxx XX
67 0000 Xxxxxxx Xxxxxxx Xxxxxxxx XX
68 0000 Xxxxxxx Xxxxxxx Xxxxxxxx XX
69 0000 Xxxxxxx Xxxxxx Xxxxxxxx XX
70 0000 Xxx Xxxxx Xxx Xxxxx XX
71 00000 Xxxxxxxxx Xxxx Xxx Xxxxx XX
72 0000 Xxxxxxxxxx Xxx. Xxxxxxxxx XX
73 000-000 XxXxxxxxxx Xxx. Xxx Xxxx XX
74 00000 Xxxxxx Xxxxxx Xxxxxx XX
75 00000 Xxxxxx Xxxxxx Xxxxxx XX
76 00000 Xxxxxx Xxxxxx Xxxxxx XX
77 00000 Xxxxxxxx Xxxxxx Xxxxxxx XX
78 00-00 Xxxxxxx Xxxx Xxxxxxxx XX
79 000 Xxx Xxxxxx Xxxx Xxxxxxxx XX
80 00-00 Xxxx Xxxx Xxxxxxxx XX
81 00 Xxxx Xxxx Xxxxxxxx XX
82 00-00 Xxxx Xxxx Xxxxxxxx XX
83 000 - 000 Xxxx Xxxx Xxxxxxxx XX
84 000 Xxxx Xxxx Xxxxxxxx XX
85 000 Xxxx Xxxx Xxxxxxxx XX
86 000 - 000 Xxxx Xxxx Xxxxxxxx XX
87 000 Xxxxxx Xxxxx Xxxxxxxx XX
88 000 Xxxxxx Xxxxx Xxxxxxxx XX
89 000 Xxxxxx Xxxxx Xxxxxxxx XX
90 000 Xxxxxx Xxxxx Xxxxxxxx XX
91 000 Xxxxxx Xxxxx Xxxxxxxx XX
92 0000 Xxxx Xxxxxx Xxxxxxx XX
93 0000 Xxxxxxxxxxx Xxxxxxx Xxxxxxx XX
94 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
95 0000-0000 Xxxxxxxxx Xxxxx Xxxxxxx XX
96 0000-0000 Xxxxxxxxx Xxxxx Xxxxxxx XX
97 0000-0000 Xxxxxxxxx Xxxxx Xxxxxxx XX
98 0000 Xxxxx Xxx (XXX XXX) Xxxxxxx XX
99 0000 Xxxxx Xxx (XXX XXXX) Xxxxxxx XX
100 0000 Xxxxx Xxxxx Xx. Xxxxxxx XX
101 0000 Xxxxx Xxxxx Xx. Xxxxxxx XX
102 0000 Xxxxxxxxxx Xx. Xxxxxxx XX
103 0000 Xxxxxxxxxx Xx. Xxxxxxx XX
104 0000 Xxxxx Xxxxx Xx. Xxxxxxx XX
105 0000 Xxxxx Xxxxx Xx Xxxxxxx XX
106 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxx XX
107 0000 Xxxxxxxxxx Xx, Xxxxxxx XX
108 0000-0000 X.X. 00xx Xxx. Xxxxx XX
109 0000-0000 X.X. 00xx Xxx. Xxxxx XX
110 CTC @ Northpoint A-C W. Palm Beach FL
111 0000 Xxxxxxx #000 Xxxxxx XX
112 0000 Xxxxxxxx Xxxxxxx Xxxxxxx XX
SCHEDULE U
----------
UNENCUMBERED ASSET POOL PROPERTIES (continued)
Owner
-----------------------------------------------------------------------------
57 Cabot Industrial Properties, L.P.
58 Cabot Industrial Properties, L.P.
59 Cabot Industrial Properties, L.P.
60 Cabot Industrial Properties, L.P.
61 Cabot Industrial Properties, L.P.
62 Cabot Industrial Properties, L.P.
63 Cabot Industrial Properties, L.P.
64 Cabot Industrial Properties, L.P.
65 Cabot Industrial Properties, L.P.
66 Cabot Industrial Properties, L.P.
67 Cabot Industrial Properties, L.P.
68 Cabot Industrial Properties, L.P.
69 Cabot Industrial Properties, L.P.
70 Cabot Industrial Properties, L.P.
71 Cabot Industrial Properties, L.P.
72 Cabot Industrial Properties, L.P.
73 Cabot Industrial Properties, L.P.
74 XX Xxxxxx Newark, LLC (DE)
75 XX Xxxxxx Newark, LLC (DE)
76 XX Xxxxxx Newark, LLC (DE)
77 Cabot Industrial Properties, L.P.
78 Cabot Industrial Properties, L.P.
79 Cabot Industrial Properties, L.P.
80 Cabot Industrial Properties, L.P.
81 Cabot Industrial Properties, L.P.
82 Cabot Industrial Properties, L.P.
83 Cabot Industrial Properties, L.P.
84 Cabot Industrial Properties, L.P.
85 Cabot Industrial Properties, L.P.
86 Cabot Industrial Properties, L.P.
87 Cabot Industrial Properties, L.P.
88 Cabot Industrial Properties, L.P.
89 Cabot Industrial Properties, L.P.
90 Cabot Industrial Properties, L.P.
91 Cabot Industrial Properties, L.P.
92 Cabot Industrial Properties, L.P.
93 Cabot Industrial Properties, L.P.
94 Cabot Industrial Properties, L.P.
95 Cabot Industrial Properties, L.P.
96 Cabot Industrial Properties, L.P.
97 Cabot Industrial Properties, L.P.
98 Cabot Industrial Properties, L.P.
99 Cabot Industrial Properties, L.P.
100 Cabot Industrial Properties, L.P.
101 Cabot Industrial Properties, L.P.
102 Cabot Industrial Properties, L.P.
103 Cabot Industrial Properties, L.P.
104 Cabot Industrial Properties, L.P.
105 Cabot Industrial Properties, L.P.
106 Cabot Industrial Properties, L.P.
107 Cabot Industrial Properties, L.P.
108 Cabot Industrial Properties, L.P.
109 Cabot Industrial Properties, L.P.
110 Cabot Industrial Properties, L.P.
111 Cabot Industrial Properties, L.P.
112 Cabot Industrial Properties, L.P.
SCHEDULE U
----------
UNENCUMBERED ASSET POOL PROPERTIES
PROPERTY ADDRESS CITY STATE NOTES
--------------------------------------------------------------------------------------
113 0000 Xxxxxxxxx Xxxx. Xxxxxx XX
114 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
115 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
116 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX
117 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX
118 0000 Xxxxx Xxxxxxx Xxxxxxx XX
119 0000 Xxxx Xxxxxxxxxxxxx Xxxx Xxxxxxxx XX
120 0000 Xxxx Xxxxxxxxxxxxx Xxxx Xxxxxxxx XX
121 0000 Xxxxx Xxxxx Xxxxx Xxxxxx XX
122 0000 Xxxxx Xxxxx Xxxxx Xxxxxx XX
123 0000-0000 Xxxxx Xxxxx Xxxxx Xxxxxx XX
124 0000 Xxxxxxxxxxxx Xxxx. Xxxxxx XX
125 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX
126 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX
127 0000 Xxxxxx Xxxxx Xxxxxxxxxxxx XX
128 0000 Xxxxxxxxxxxxx Xxx Xxxxxx XX
129 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
130 0000 Xxxxxx Xxxxx, Xxxx X Xxxxxxxx XX
131 0 Xxxxxx Xxxxx Xxxxxxxx XX
132 00 Xxxxxx Xxxxx Xxxxxxxx XX
133 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
134 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
135 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
136 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
137 0000 Xxxxx Xxxx Xxxxx Xxxxxxx XX
138 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
139 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
140 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
141 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
142 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
143 0000 Xxxxxx Xxxxx, Xxxx X Xxxxxxxx XX
144 0000 Xxxxxx Xxxxx, Xxxx X Xxxxxxxx XX
145 0000 Xxxxxx Xxxxx Xxxxxxxx XX
146 0000 Xxxxxx Xxxxx Xxxxxxxx XX
147 0000 Xxxxxx Xxxxx Xxxxxxxx XX
148 0000 Xxxxxx Xxxxx Xxxxxxxx XX
149 0000 Xxxxxx Xxxxx Xxxxxxxx XX
150 0000 Xxxxxx Xxxxx Xxxxxxxx XX
151 0000 Xxxxxx Xxxxx Xxxxxxxx XX
152 00 Xxxxxxxx Xxxx Xxxxxxxxx XX
153 00 Xxxxxxxx Xxxx Xxxxxxxxx XX
154 00 Xxxxx Xxxxxx Xxxxxxxxx XX
155 00 Xxxxxxxxxx Xxxxx Xxxxxx XX
156 0000 Xxxxxx Xxxxxx Xxxxxx MD
157 7970 Tar Bay Drive Jessup MD
158 0000 Xxxxxxxxx Xxxxx Savage MD
159 0000 Xxxxxxx Xxxxx Savage MD
160 0000 Xxxxxxx Xxxxx Jessup MD
161 8332 Bristol Court Jessup MD
162 8306 Patuxent Range Road Jessup MD
163 00000 Xxxxxxxx Xxxx Xxxxxxxxx Xxxxxxx XX
164 8350 Bristol Court Jessup MD
165 000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX
166 000 Xxxxxxxxx Xxxx Xxxxxxxxx Heights MD
167 0000 Xxxxxxxx Xxxx Xxxxxxxx MD
168 8351 Bristol Court Jessup MD
SCHEDULE U
----------
UNENCUMBERED ASSET POOL PROPERTIES (continued)
OWNER
-----------------------------------------------------------------------------
113 Cabot Industrial Properties, L.P.
114 Cabot Industrial Properties, L.P.
115 Cabot Industrial Properties, L.P.
116 Cabot Industrial Properties, L.P.
117 Cabot Industrial Properties, L.P.
000 Xxxxxxx Xxxxxxxx Xxxxxx, LLC (GA)
119 Cabot Industrial Properties, L.P.
120 Cabot Industrial Properties, L.P.
121 Cabot Industrial Properties, L.P.
122 Cabot Industrial Properties, L.P.
123 Cabot Industrial Properties, L.P.
124 Cabot Industrial Properties, L.P.
125 Cabot Industrial Properties, L.P.
126 Cabot Industrial Properties, L.P.
127 Cabot Industrial Properties, L.P.
128 Cabot Industrial Properties, L.P.
129 Cabot Industrial Properties, L.P.
130 Cabot Industrial Properties, L.P.
131 Cabot Industrial Properties, L.P.
132 Cabot Industrial Properties, L.P.
133 Cabot Industrial Properties, L.P.
134 Cabot Industrial Properties, L.P.
135 Cabot Industrial Properties, L.P.
136 Cabot Industrial Properties, L.P.
137 Cabot Industrial Properties, L.P.
138 Cabot Industrial Properties, L.P.
139 Cabot Industrial Properties, L.P.
140 Cabot Industrial Properties, L.P.
141 Cabot Industrial Properties, L.P.
142 Cabot Industrial Properties, L.P.
143 Cabot Industrial Properties, L.P.
144 Cabot Industrial Properties, L.P.
145 Cabot Industrial Properties, L.P.
146 Cabot Industrial Properties, L.P.
147 Cabot Industrial Properties, L.P.
148 Cabot Industrial Properties, L.P.
149 Cabot Industrial Properties, L.P.
150 Cabot Industrial Properties, L.P.
151 Cabot Industrial Properties, L.P.
152 Cabot Industrial Properties, L.P.
153 Cabot Industrial Properties, L.P.
154 Cabot Industrial Properties, L.P.
155 Cabot Industrial Properties, L.P.
156 Cabot Industrial Properties Holding, Inc. (DE)
157 Cabot Industrial Properties Holding, Inc. (DE)
000 XXX Xxxxxxxxx Xxxxx Limited Partnership (VA)
159 CIT. Xxxxxxx Place Limited Partnership (VA)
000 XXX Xxxxxxx Xxxxx Limited Partnership (CA)
161 Cabot Industrial Properties Holding, Inc. (DE)
162 Cabot Industrial Properties Holding, Inc. (DE)
000 Xxxxxxxxx Xxxxxxxx Xxxx Limited Partnership (MD) Guilford Property LLC (MD)
164 BWI Warehouse #4 Limited Partnership (MD) Bristol Property, LLC (MD)
165 Cabot Industrial Properties, L.P.
166 Cabot Industrial Properties, L.P.
167 Cabot Industrial Properties, L.P.
168 Cabot Industrial Properties, L.P.
SCHEDULE U
----------
UNENCUMBERED ASSET POOL PROPERTIES
PROPERTY ADDRESS CITY STATE NOTES
--------------------------------------------------------------------------------------
169 0000 Xxxx 00xx Xxxxxx Xxxxxxxxxxx XX
170 00000 Xxxxxx Xxxx Xxxxxxxxx XX
171 0000 Xxxxxxxxxxxx Xxxx. Xxxxxxxxx XX
172 00000 Xxxxxxx Xxxx Xxxx Xxxxxxxxx XX
173 00000 Xxxxxxx Xxxxxx Xxxxxxxxx XX
174 0000 Xxxxxxxxxxxx Xxxx. Xxxxxxxxx XX
175 0000 Xxxxxxxxxxxx Xxxx. Xxxxxxxxx XX
000 XX Xxx 00 & Xxx Xxxxxxxxx Xxxxxx XX
177 0000 Xxxxxxx Xxxx Xxxxxx XX
178 0000 Xxxxxxxx Xxxx. Xxxxxxxxx XX
179 0000 Xxxxxxxx Xxxx. Xxxxxxxxx XX
180 0000 Xxxxxxxx Xxxx. Xxxxxxxxx XX
181 00000 X. Xxxxxxxx Xxxx. Xxxxxxxxx XX
182 0000 X. X-00 Xxxxxxx Xx. Xxxxxxxxx XX
183 0000 Xxxxxx Xxxxx Xxxxxxxx XX
184 0000-0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
185 0000-0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
186 0000 Xxxxxxxxxxxxx Xxxxxx Xxxxxxxx XX
187 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxx XX
188 0000 Xxxx Xxxx Xxxxxxxx Xxxxxx XX
189 0000 Xxxx Xxxxxx Xxxxx Xxxxxxxx XX
190 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
191 0000 Xxxxxx Xxxxx Xxxxxxxx XX
192 0000 Xxxxxxxxxxxxx Xxxx Xxxxxxxxxx XX
193 0000 Xxxxxxxxxxxxx Xxxx Xxxxxxxxxx XX
194 0000 Xxxx Xxxxxx Xxxx Xxxx Xxx XX
195 0000 Xxxx Xxxxxx Xxxx Xxxx Xxx XX
196 00000 Xxxxxxx Xxxx Xxxx Xxx XX
197 00000 Xxxxxxx Xxxx Xxxx Xxx XX
198 00000 Xxxxxxx Xxxx Xxxx Xxx XX
199 00000 Xxxxxxx Xxxx Xxxx Xxx XX
200 00000 Xxxxxxx Xxxx Xxxx Xxx XX
201 11083-11087 Kenwood Road Blue Ash OH
202 00000 Xxxxxxx Xxxx Xxxx Xxx XX
203 0000 Xxxxx Xxxx Xxxx Xxx XX
204 000 Xxxxxxxx Xxxx Xxxxxxxx XX
205 000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx XX
206 000 Xxxxxxx Xxxx Xxxx Xxxxxxxxxx XX
207 0000 Xxxxx Xxxxx Xxxxxxx XX
208 000 Xxxxxxx Xxxxx Xxxxxxx XX
209 4151 SH 000 Xxxxx Xxxxxxxxx XX
210 0000 Xxxxxxxxx Xx Xxxxxxxxx XX
211 0000-0000 Xxxx Xxxx Xxxxxxxxxx XX
212 0000 Xxxxxxx Xxxxx Xxxxxxxxx XX
213 0000 Xxxxxxx Xxxxx Xxxxxxxxx XX
214 000 000xx Xxxxxx Xxxxxxxxx XX
215 000 Xxxxxxx Xxxxx Xxxxxxx XX
216 000 Xxxxx Xxxx Xxxxx Xxxxxxx XX
217 00000 Xxxxxxx Xxxxx Xxxxx Xxxxxx XX
218 0000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx XX
219 00000 Xxxxxxxxx Xxxx Xxxxxx XX
220 00000-00000 Xxxxxxxxx Xx Xxxxxx XX
221 00000-00000 Xxxxxxxxx Xx Xxxxxx XX
SCHEDULE U
----------
UNENCUMBERED ASSET POOL PROPERTIES (continued)
OWNER
-----------------------------------------------------------------------------
169 Cabot Industrial Properties, L.P.
170 Cabot Industrial Properties, L.P.
171 Cabot Industrial Properties, L.P.
172 Cabot Industrial Properties, L.P.
173 Cabot Industrial Properties, L.P.
174 Cabot Industrial Properties, L.P.
175 Cabot Industrial Properties, L.P.
176 Cabot Industrial Properties, L.P.
177 Cabot Industrial Properties, L.P.
178 Cabot Industrial Properties, L.P.
179 Cabot Industrial Properties, L.P.
180 Cabot Industrial Properties, L.P.
181 Cabot Industrial Properties, L.P.
182 Cabot Industrial Properties, L.P.
183 Cabot Industrial Properties, L.P.
184 Cabot Industrial Properties, L.P.
185 Cabot Industrial Properties, L.P.
186 Cabot Industrial Properties, L.P.
187 Cabot Industrial Properties, L.P.
188 Cabot Industrial Properties, L.P.
189 Cabot Industrial Properties, L.P.
190 Cabot Industrial Properties, L.P.
191 Cabot Industrial Properties, L.P.
192 Cabot Industrial Properties, L.P.
193 Cabot Industrial Properties, L.P.
194 Cabot Industrial Properties, L.P.
195 Cabot Industrial Properties, L.P.
196 Cabot Industrial Properties, L.P.
197 Cabot Industrial Properties, L.P.
198 Cabot Industrial Properties, L.P.
199 Cabot Industrial Properties, L.P.
200 Cabot Industrial Properties, L.P.
201 Cabot Industrial Properties, L.P.
202 Cabot Industrial Properties, L.P.
203 Cabot Industrial Properties, L.P.
204 Cabot Industrial Properties, L.P.
205 Cabot Industrial Properties, L.P.
206 Cabot Industrial Properties, L.P.
207 Cabot Industrial Properties, L.P.
208 Cabot Industrial Properties, L.P.
209 Cabot Industrial Properties, L.P. by merger of interest from Industrial Properties Holding, L.P. (DE)
210 Cabot Industrial Properties, L.P. by merger of interest from Industrial Properties Holding, L.P. (DE)
211 Cabot Industrial Properties, L.P.
212 Cabot Industrial Properties, L.P.
213 Cabot Industrial Properties, L.P.
214 Cabot Industrial Properties, L.P.
215 Cabot Industrial Properties, L.P.
216 Cabot Industrial Properties, L.P.
217 Cabot Industrial Properties, L.P.
218 Cabot Industrial Properties, L.P.
219 Cabot Industrial Properties, L.P.
220 Cabot Industrial Properties, L.P.
221 Cabot Industrial Properties, L.P.
SCHEDULE U
----------
UNENCUMBERED ASSET POOL PROPERTIES
PROPERTY ADDRESS CITY STATE NOTES
--------------------------------------------------------------------------------------
222 0000 Xxxxxxxxx Xx Xxxxxxxxx XX
223 0000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx XX
224 0000 Xxxxxxx Xxxx Xxxxxxxxxx XX
225 000-000 Xxxxxx X Xxxxx XX
226 0000 Xxxxxx Xxxx Xxxxx XX
227 000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxx XX
228 0000 X Xxxxxx Xxxx Xxxx Xxxxxxxxx XX
229 0000 Xxxx Xxxxx Xxxxxxx Xxxxx XX
230 0000 Xxxx Xxxxx Xxxxxxx Xxxxx XX
231 0000 Xxxx Xxxxx Xxxxxxx Xxxxx XX
232 0000 Xxxxxx Xxxxxx Xxxxx XX
233 0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxxx XX
234 0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxxx XX
235 000 Xxxxx Xxxxxx Xxxxxxxxxx XX
236 000-000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX
237 000 Xxxxxxx Xxxxxx Xxxxxxxx (park) Alexandria VA
000 0000-0000 Xxxxxxxxx Xxxxx Alexandria VA
239 000-000 Xxxxx'x Xxxxxx Xxxxxxxxxx XX
240 0000-0000 Xxxxxxxx Xxxxxx Alexandria VA
241 000-000 Xxxxx Xxxxxx Xxxxxxxxxx XX
242 00000 Xxxxx Xxxx. Xxxxxxxx XX
000 Xxxxx Xxxx Xxxxxxxxx Xxxx 0 Xxxxxxx XX
000 Xxxxx Xxxx Xxxxxxxxx Xxxx 0 Xxxxxxx XX
245 00000 Xxxxx Xxxx. Xxxxxxxx XX
246 00000 00xx Xxxxxx - Xxxxx Xxxx XX
247 0000 X. 000xx Xxxxxx Xxxx XX
248 00000 00xx Xxxxxx - Xxxxx Xxxx XX
249 00000 00xx Xxxxxx - Xxxxx Xxxx XX
250 00000 00xx Xxxxxx - Xxxxx Xxxx XX
251 00000 00xx Xxxxxx - Xxxxx Xxxx XX
252 00000 00xx Xxxxxx - Xxxxx Xxxx XX
SCHEDULE U
----------
UNENCUMBERED ASSET POOL PROPERTIES (continued)
OWNER
-----------------------------------------------------------------------------
222 Cabot Industrial Properties, L.P. by merger of interest from Industrial Properties Holding, L.P. (DE)
223 Cabot Industrial Properties, L.P.
224 Cabot Industrial Properties, L.P.
225 Cabot Industrial Properties, L.P.
226 Cabot Industrial Properties, L.P.
227 Cabot Industrial Properties, L.P.
228 Cabot Industrial Properties, L.P.
229 Cabot Industrial Properties, L.P.
230 Cabot Industrial Properties, L.P.
231 Cabot Industrial Properties, L.P.
232 Cabot Industrial Properties, L.P.
233 Cabot Industrial Properties Holding, Inc. (DE)
234 Cabot Industrial Properties Holding, Inc. (DE)
235 Cabot Industrial Properties Holding, Inc. (DE)
236 Cabot Industrial Properties Holding, Inc. (DE)
237 Cabot Industrial Properties Holding, Inc. (DE)
238 Cabot Industrial Properties Holding, Inc. (DE)
239 Cabot Industrial Properties Holding, Inc. (DE)
240 Cabot Industrial Properties Holding, Inc. (DE)
241 Cabot Industrial Properties Holding, Inc. (DE)
242 Cabot Industrial Properties, L.P.
243 Cabot Industrial Properties, L.P.
244 Cabot Industrial Properties, L.P.
245 Cabot Industrial Properties, L.P.
246 Cabot Industrial Properties, L.P.
247 Cabot Industrial Properties, L.P.
248 Cabot Industrial Properties, L.P.
249 Cabot Industrial Properties, L.P.
250 Cabot Industrial Properties, L.P.
251 Cabot Industrial Properties, L.P.
252 Cabot Industrial Properties, L.P.
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
PROPERTY ADDRESS CITY STATE NOTES
--------------------------------------------------------------------------------------------------------
1 000 X. 000xx Xxxxxx Xxxxxxxx XX
2 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
3 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
4 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
5 0 Xxxxx 00xx Xxxxxx Xxxxxxxx XX
6 00000 Xxxx Xxx Xxxxx Xxx. Xxxxxxxx XX Encumbered
7 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX Encumbered
8 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
9 000 Xxxxx 000xx Xxxxxx Xxxxxxx XX
00 00xx Xxxxxx & Xxxxxxxxx Xxxxxxx XX Encumbered
11 000 Xxxxx 0xx Xxxxxx Xxxxxxx XX Encumbered
12 000 X. 00xx Xxxxxx Xxxxxxx XX Encumbered
13 0000 Xxxxx 00xx Xxxxxx Xxxxxxx XX Encumbered
14 0000 X. 00xx Xxxxxx Xxxxxxx XX Encumbered
15 000 Xxxxx 00xx Xxxxxx Xxxxxxx XX Encumbered
16 0000 X. 00xx Xxxxxx Xxxxxxx XX Encumbered
17 0000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
18 0000 Xxxx Xxxxxxx Xxxxx Xxxxx XX Encumbered
19 0000 X. Xxxxxxx Xxxxx Xxxxx XX Encumbered
20 0000 Xxxxx Xxxxxx Xxxxx Xxxxx XX Encumbered
21 0000 X. Xxxxxxx Xxxxx Xxxxx XX Encumbered
22 0000 X. Xxxxxxx Xxxxx Xxxxx XX Encumbered
23 0000 X. Xxxxxxx Xxxxx Xxxxx XX Encumbered
24 Eastbank 0000 Xxxx Xxxxxxx Xx Xxxxxxx XX
25 0000 X. Xxxxxxxxxx Xxxxx Xxxxxxx XX Encumbered
26 0000 X. Xxxxxxxxxx Xxxxx Xxxxxxx XX Encumbered
27 0000 X. Xxxxxxxxxx Xxxxx Xxxxxxx XX Encumbered
28 0000 X. Xxxxxxxxxx Xxxxx Xxxxxxx XX Encumbered
29 0000 X. Xxxxxxxxxx Xxxxx Xxxxxxx XX Encumbered
30 Skyharbor - 000 Xxxxx 00xx Xxxxxxx XX Ground Lease
31 0000 X. Xxxxxxxx Xxxxxx Xxxxx XX
32 000 X. 00xx Xxxxxx Xxxxx XX
33 000 X. 00xx Xxxxxx Xxxxx XX
34 0000 X. Xxxxxx Xxxxx Xxxxx XX
35 0000 X. Xxxxxx Xxxxx Xxxxx XX
36 0000 X. Xxxxxx Xxxxx Xxxxx XX
37 0000 XxXxxxxx Xxxxxx Xxxx Xxxx XX
38 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX
39 000 Xxxxx Xxxxxxxxxxx Xxx Xxxxxxx XX
40 0000 Xxxxxxx Xxxxxx Xxxxxxx XX
41 0000 Xxx Xxxxxxxx Xxxx Xxx Xxxxxx XX Encumbered
42 00000 Xxxxxxx Xxxxxx Xxxx xx Xxxxxxxx XX
43 00000 Xxxxxx Xxxxxx Xxxxxxx XX
00 XXX XXX-X Xxxxxx Xxxxxxxxx XX Vacant Land
45 0000 Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxxxx XX Joint Venture
46 00000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx XX Joint Venture
47 CDC IIB-C Los Angeles CA Development
00 XXX XX-X Xxxxxx Xxxxxxxxx XX Joint Venture
49 0000 X Xxx Xxxxxxxx Xx Xxxxxxxx XX Fee Interest in land only
50 000 Xxxx Xxxx Xxxx Xxxxx Xxx XX
51 0000 X. Xxxxxxx Xxxxxx Xxxxxxx XX
52 00000 Xxxxxxxx Xxxxxx Xx Xxxxxx XX Encumbered
53 0000 Xxxx Xxxxx Xxx Xxxxxx Xxxxxxx XX Encumbered
54 0000 Xxxx Xxxxx Xxx Xxxxxx Xxxxxxx XX Encumbered
55 00000 Xxxxxx Xxxxx Xxxxxx Xxxxxxxxx XX Encumbered
56 00000 00xx Xxxxxx Xxxxx XX Encumbered
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
OWNER
---------------------------------
1 Cabot Industrial Properties, L.P.
2 Cabot Industrial Properties, L.P.
3 Cabot Industrial Properties, L.P.
4 Cabot Industrial Properties, L.P.
5 Cabot Industrial Properties, L.P.
6 Cabot Industrial Properties, L.P.
7 Cabot Industrial Properties, L.P.
8 Cabot Industrial Properties, L.P.
9 Cabot Industrial Properties, L.P.
10 Cabot Industrial Properties, L.P.
11 Cabot Industrial Properties, L.P.
12 Cabot Industrial Properties, L.P.
13 Cabot Industrial Properties, L.P.
14 Cabot Industrial Properties, L.P.
15 Cabot Industrial Properties, L.P.
16 Cabot Industrial Properties, L.P.
17 Cabot Industrial Properties, L.P.
18 Cabot Industrial Properties, L.P.
19 Cabot Industrial Properties, L.P.
20 Cabot Industrial Properties, L.P.
21 Cabot Industrial Properties, L.P.
22 Cabot Industrial Properties, L.P.
23 Cabot Industrial Properties, L.P.
24 Cabot Industrial Properties, L.P.
25 Cabot Industrial Properties, L.P.
26 Cabot Industrial Properties, L.P.
27 Cabot Industrial Properties, L.P.
28 Cabot Industrial Properties, L.P.
29 Cabot Industrial Properties, L.P.
30 Cabot Industrial Properties, L.P.
31 Cabot Industrial Properties, L.P.
32 Cabot Industrial Properties, L.P.
33 Cabot Industrial Properties, L.P.
34 Cabot Industrial Properties, L.P.
35 Cabot Industrial Properties, L.P.
36 Cabot Industrial Properties, L.P.
37 Cabot Industrial Properties, L.P.
38 Cabot Industrial Properties, L.P.
39 Cabot Industrial Properties, L.P.
40 Cabot Industrial Properties, L.P.
41 Cabot Industrial Properties, L.P.
00 Xxxxxxx Xxxxxx Holdings, LLC (DE)
43 Cabot Industrial Properties, L.P.
44 Cabot Industrial Properties, L.P.
45 Cabot Industrial Properties, L.P.
46 Cabot Industrial Properties, L.P.
47 Cabot Industrial Properties, L.P.
48 Cabot Industrial Properties, L.P.
00 Xxx Xxxxxxxx Xxxx Holdings, LLC (DE)
50 Cabot Industrial Properties, L.P.
51 Cabot Industrial Properties, L.P.
52 Cabot Industrial Properties, L.P.
53 Cabot Industrial Properties, L.P.
54 Cabot Industrial Properties, L.P.
55 Cabot Industrial Properties, L.P.
56 Cabot Industrial Properties, L.P.
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
PROPERTY ADDRESS CITY STATE NOTES
--------------------------------------------------------------------------------------------------------
57 000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX
58 0000 Xxxxxx Xxxxxx Xxx Xxxxxxx XX
59 0000 X. Xxx Xxxxxxxx Xx. Xxx Xxxxxxx XX
60 0000 X. Xxx Xxxxxxxx Xx. Xxx Xxxxxxx XX
61 0000 X. Xxx Xxxxxxxx Xx. Xxx Xxxxxxx XX
62 0000 X. Xxxxx Xxxxxx Xxxxxxx XX
63 0000 X. Xxxxx Xxxxxx Xxxxxxx XX
64 0000 X. Xxxxx Xxxxx Xxx Xxxxxx Xxxxxxxxx XX
00 Xxxxx Xxxxxxxx Xxxxxx X-X Xxx Xxxxxxx XX Development
66 000-000 X. Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxxx XX
67 00000 Xxxxxxx Xxxx. Xx Xxxxxx XX
68 000 Xxxxxx Xxxxxx Xxxxxx XX Joint Venture
69 0000 Xxxxxxx Xxx Xxxxxxxxx XX
70 0000 Xxxxxxx Xxx. Xxxxxxxxx XX
71 0000 Xxxxxxxxxxxx Xxx. Xxxxxxxxx XX
72 0000 X. Xxxxxx Xxx. Xxxxxxx XX
73 0000 X. Xxxxxx Xxx. Xxxxxxx XX
74 00000 Xxxx Xxxxx Xxxxxxxx XX
75 00000 Xxxx Xxxxx Xxxxxxxx XX
76 00000 Xxxx Xxxxx Xxxxxxxx XX
77 0000 Xxxxx Xxxxxx Xxxx Xxxxxx XX
78 0000 Xxxxx Xxxxx Xxxx Xxxxxx XX
79 0000 Xxxxx Xxxxx Xxxx Xxxxxx XX
80 0000-0000 X. Xxx Xxxxxxxx Xxx Xxxxxxx XX
81 0000 X. Xxx Xxxxxxxx Xx. Xxx Xxxxxxx XX
82 0000 X. Xxx Xxxxxxxx Xx. Xxx Xxxxxxx XX
83 00000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx XX
84 Cabot Commerce Center B-C Los Angeles CA Development
85 00000 Xxxxxx Xxxxxx Xxxxxxxxxx XX
86 00000 X. 000xx Xxxxxx Xxxxxxxx XX
87 00000 Xxxxxxxxx Xxxxxx Xxxxx Xx Xxxxxxx XX
88 00000 Xxxxxxxxx Xxxxxx Xxxxx Xx Xxxxxxx XX
89 00000 Xxxxxxxxx Xxxxxx Xxxxx Xx Xxxxxxx XX
90 00000 Xxxxxxxxx Xxxxxx Xxxxx Xx Xxxxxxx XX
91 0000-0000 Xxxxxxx Xxx Xxxxxx Xxxxx XX
92 0000 Xxxxxxx Xxx Xxxxxx Xxxxx XX
93 0000 Xxxxxxx Xxx Xxxxxx Xxxxx XX
94 0000 Xxxxxxx Xxx Xxxxxx Xxxxx XX
95 0000 Xxxxxxxx Xxxxxx Xxxxx Xxx XX
96 0000-0000 Xxxxxxxx Xxxxxx Xxxxx Xxx XX
97 0000 Xxxxxxxx Xxxxxx Xxxxx Xxx XX
98 00000 Xxxxxxxxx Xxxx Xxxxxxxxxx Xxxxx XX
99 0000 Xxxxxx Xxxxxxxxx Xxxxx Xxxx XX
100 0000 Xxxxxx-Xxxxxx Xxxx Xxxxxx XX Joint Venture
101 0000 Xxxxxxx Xxxxx Xxx Xxxxx XX
102 0000 Xxxxxx Xxxxx Xxxxxxxx XX Encumbered
103 0000 Xxxxxxx Xxxxxxx Xxxxxxxx XX
104 0000 Xxxxxxx Xxxxxxx Xxxxxxxx XX
105 0000 Xxxxxx Xxxx Xxxx Xxxx XX Encumbered
106 0000 Xxxxxx Xxxx Xxxx Xxxx XX Encumbered
107 0000 Xxxxxxx Xxxxxx Xxxxxxxx XX
108 0000 Xxx Xxxxx Xxx Xxxxx XX
109 00000 Xxxxxxxxx Xxxx Xxx Xxxxx XX
110 0000 Xxxxxxxxxx Xxx. Xxxxxxxxx XX
111 000-000 XxXxxxxxxx Xxx. Xxx Xxxx XX
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
OWNER
---------------------------------
57 Cabot Industrial Properties, L.P.
00 Xxx Xxxxxxxx Xxxx Holdings, LLC
00 Xxx Xxxxxxxx Xxxx Holdings, LLC
00 Xxx Xxxxxxxx Xxxx Holdings, LLC
00 Xxx Xxxxxxxx Xxxx Holdings, LLC
62 Cabot Industrial Properties, L.P.
63 Cabot Industrial Properties, L.P.
64 Cabot Industrial Properties, L.P.
65 Cabot Industrial Properties, L.P.
66 Cabot Industrial Properties, L.P.
67 Cabot Industrial Properties, L.P.
68 Industrial Properties Portfolio Subsidiary V, L.L.C. (DE)
69 Cabot Industrial Properties, L.P.
70 Cabot Industrial Properties, L.P.
71 Cabot Industrial Properties, L.P.
72 Cabot Industrial Properties, L.P.
73 Cabot Industrial Properties, L.P.
74 Cabot Industrial Properties, L.P.
75 Cabot Industrial Properties, L.P.
76 Cabot Industrial Properties, L.P.
77 Cabot Industrial Properties, L.P.
78 Cabot Industrial Properties, L.P.
79 Cabot Industrial Properties, L.P.
00 Xxx Xxxxxxxx Xxxx Holdings, LLC
00 Xxx Xxxxxxxx Xxxx Holdings, LLC
00 Xxx Xxxxxxxx Xxxx Holdings, LLC
83 Cabot Industrial Properties, L.P.
84 Cabot Industrial Properties, L.P.
85 Cabot Industrial Properties, L.P.
86 Cabot Industrial Properties, L.P.
87 Cabot Industrial Properties, L.P.
88 Cabot Industrial Properties, L.P.
89 Cabot Industrial Properties, L.P.
90 Cabot Industrial Properties, L.P.
91 Cabot Industrial Properties, L.P.
92 Cabot Industrial Properties, L.P.
93 Cabot Industrial Properties, L.P.
94 Cabot Industrial Properties, L.P.
95 Cabot Industrial Properties, L.P.
96 Cabot Industrial Properties, L.P.
97 Cabot Industrial Properties, L.P.
98 Cabot Industrial Properties, L.P.
99 Cabot Industrial Properties, L.P.
100 Industrial Properties Portfolio Subsidiary V, L.L.C. (DE)
101 Cabot Industrial Properties, L.P.
102 Cabot Industrial Properties, L.P.
103 Cabot Industrial Properties, L.P.
104 Cabot Industrial Properties, L.P.
105 Cabot Industrial Properties, L.P.
106 Cabot Industrial Properties, L.P.
107 Cabot Industrial Properties, L.P.
108 Cabot Industrial Properties, L.P.
109 Cabot Industrial Properties, L.P.
110 Cabot Industrial Properties, L.P.
111 Cabot Industrial Properties, L.P.
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
PROPERTY ADDRESS CITY STATE NOTES
--------------------------------------------------------------------------------------------------------
112 00000 Xxxxxx Xxxxxx Xxxxxx XX
113 00000 Xxxxxx Xxxxxx Xxxxxx XX
114 00000 Xxxxxx Xxxxxx Xxxxxx XX
Joint Venture;
115 0000 Xxxxxxx Xxxxxx Xxxxxx XX Encumbered
116 00000 Xxxxxxxx Xxxxxx Xxxxxxx XX
117 00-00 Xxxxxxx Xxxx Xxxxxxxx XX
118 000 Xxx Xxxxxx Xxxx Xxxxxxxx XX
119 00-00 Xxxx Xxxx Xxxxxxxx XX
120 00 Xxxx Xxxx Xxxxxxxx XX
121 00-00 Xxxx Xxxx Xxxxxxxx XX
122 105 - 000 Xxxx Xxxx Xxxxxxxx XX
123 000 Xxxx Xxxx Xxxxxxxx XX
124 000 Xxxx Xxxx Xxxxxxxx XX
125 150 - 000 Xxxx Xxxx Xxxxxxxx XX
126 000 Xxxxxx Xxxxx Xxxxxxxx XX
127 000 Xxxxxx Xxxxx Xxxxxxxx XX
128 000 Xxxxxx Xxxxx Xxxxxxxx XX
129 000 Xxxxxx Xxxxx Xxxxxxxx XX
130 000 Xxxxxx Xxxxx Xxxxxxxx XX
Joint Venture;
131 0000 Xxxxxxxxx Xxxxx Xxxxx Xxxxx XX Encumbered
Joint Venture;
132 0000 Xxxxxxx Xxxxxx Xxxxxx XX Encumbered
Joint Venture;
133 0000 Xxxxxxx Xxxxxx Xxxxxx XX Encumbered
Joint Venture;
134 0000 Xxxxxxx Xxxxxx Xxxxxx XX Encumbered
135 00 Xxxxx Xxxx Xxxx Xxxxxxx XX
000 0000 Xxxx Xxxxxx Xxxxxxx XX
137 0000 Xxxxxxxxxxx Xxxxxxx Xxxxxxx XX
138 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
139 0000-0000 Xxxxxxxxx Xxxxx Xxxxxxx XX
140 0000-0000 Xxxxxxxxx Xxxxx Xxxxxxx XX
141 0000-0000 Xxxxxxxxx Xxxxx Xxxxxxx XX
142 0000 Xxxxx Xxx (XXX XXX) Xxxxxxx XX
143 0000 Xxxxx Xxx (XXX XXXX) Xxxxxxx XX
144 0000 Xxxxxxxx Xxxxx Xxxxxxx XX Encumbered
145 0000 Xxxxx Xxxxx Xx. Xxxxxxx XX
146 0000 Xxxxx Xxxxx Xx. Xxxxxxx XX
147 0000 Xxxxxxxxxx Xx. Xxxxxxx XX
148 0000 Xxxxxxxxxx Xx. Xxxxxxx XX
149 0000 Xxxxx Xxxxx Xx. Xxxxxxx XX
150 0000 Xxxxx Xxxxx Xx Xxxxxxx XX
151 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxx XX
152 0000 Xxxxxxxxxx Xx, Xxxxxxx XX
000 XXX XXX-X Xxxxxxx XX Development
000 XXX XX-X Xxxxxxx XX Development
000 XXX X-X Xxxxxxx XX Vacant Land
000 XXX XX-X Xxxxxxx XX Vacant Land
157 CDC @ Miami-C Miami FL Vacant Land
158 0000-0000 X.X. 00xx Xxx. Xxxxx XX
159 0000-0000 X.X. 00xx Xxx. Xxxxx XX
160 CTC @ Northpoint A-C W. Palm Beach FL
161 CTC @ Northpoint B-C W. Palm Beach FL Development
000 XXX @ Xxxxxxxxxx X-X X. Xxxx Xxxxx XX Development
163 0000 Xxxxxxx #000 Xxxxxx XX
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
OWNER
---------------------------------
112 XX Xxxxxx Newark, LLC (DE)
113 XX Xxxxxx Newark, LLC (DE)
114 XX Xxxxxx Newark, LLC (DE)
115 Industrial Properties Portfolio Subsidiary II, L.L.C. (DE)
116 Cabot Industrial Properties, L.P.
117 Cabot Industrial Properties, L.P.
118 Cabot Industrial Properties, L.P.
119 Cabot Industrial Properties, L.P.
120 Cabot Industrial Properties, L.P.
121 Cabot Industrial Properties, L.P.
122 Cabot Industrial Properties, L.P.
123 Cabot Industrial Properties, L.P.
124 Cabot Industrial Properties, L.P.
125 Cabot Industrial Properties, L.P.
126 Cabot Industrial Properties, L.P.
127 Cabot Industrial Properties, L.P.
128 Cabot Industrial Properties, L.P.
129 Cabot Industrial Properties, L.P.
130 Cabot Industrial Properties, X.X.
000 XXX - Xxxxx Xxxxxxxxxx Xxxxxxxx XX, X.X.X. (XX)
132 Industrial Properties Portfolio Subsidiary II, L.L.C. (DE)
133 Industrial Properties Portfolio Subsidiary II, L.L.C. (DE)
134 Industrial Properties Portfolio Subsidiary II, L.L.C. (DE)
135 Cabot Industrial Properties, L.P.
136 Cabot Industrial Properties, L.P.
137 Cabot Industrial Properties, L.P.
138 Cabot Industrial Properties, L.P.
139 Cabot Industrial Properties, L.P.
140 Cabot Industrial Properties, L.P.
141 Cabot Industrial Properties, L.P.
142 Cabot Industrial Properties, L.P.
143 Cabot Industrial Properties, L.P.
144 Cabot Industrial Properties, L.P.
145 Cabot Industrial Properties, L.P.
146 Cabot Industrial Properties, L.P.
147 Cabot Industrial Properties, L.P.
148 Cabot Industrial Properties, L.P.
149 Cabot Industrial Properties, L.P.
150 Cabot Industrial Properties, L.P.
151 Cabot Industrial Properties, L.P.
152 Cabot Industrial Properties, L.P.
153 Cabot Industrial Properties, L.P.
154 Cabot Industrial Properties, L.P.
155 Cabot Industrial Properties, L.P.
156 Cabot Industrial Properties, L.P.
157 Cabot Industrial Properties, L.P.
158 Cabot Industrial Properties, L.P.
159 Cabot Industrial Properties, L.P.
160 Cabot Industrial Properties, L.P.
161 Cabot Industrial Properties, L.P.
162 Cabot Industrial Properties, L.P.
163 Cabot Industrial Properties, L.P.
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
Property Address City State Notes
--------------------------------------------------------------------------------------------------------
164 0000 Xxxxxxxx Xxxxxxx Xxxxxxx XX
165 0000 Xxxxxxxxx Xxxx. Xxxxxx XX
166 0000 Xxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxx XX Encumbered
167 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
168 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
169 CBC @ Breckinridge 000-X Xxxxxxx XX Development
170 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX Encumbered
171 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX Encumbered
172 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX Encumbered
173 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX Encumbered
174 0000 Xxxxxxxxx Xxxx. Xxxxxx XX Encumbered
175 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX
176 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX
177 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX Encumbered
178 0000 Xxxxx Xxxxxxx Xxxxxxx XX
179 CBC @ Xxxxxxx 000-X Xxxxxxx XX Development
180 0000 Xxxxxx Xxxxx Xxxx. Xxxxxx XX Encumbered
181 0000 Xxxxxx Xxxxx Xxxx. Xxxxxx XX Encumbered
182 0000 Xxxxxx Xxxxx Xxxx. Xxxxxx XX Encumbered
183 0000 Xxxxxx Xxxxxxx Xxxxxx XX Encumbered
000 XXX @ Xxxxxxx 000 Xxxxxxx XX Vacant Land
000 XXX @ Xxxxxxx 000-X Xxxxxxx XX Vacant Land
186 0000 Xxxx Xxxxxxxxxxxxx Xxxx Xxxxxxxx XX
187 0000 Xxxx Xxxxxxxxxxxxx Xxxx Xxxxxxxx XX
188 0000 Xxxxx Xxxxx Xxxxx Xxxxxx XX
189 0000 Xxxxx Xxxxx Xxxxx Xxxxxx XX
190 0000-0000 Xxxxx Xxxxx Xxxxx Xxxxxx XX
191 000 Xxxx Xxxx Xxxxx - Xxxx 0 Xxxxxxxx XX Encumbered
192 000 Xxxx Xxxx Xxxxx - Xxxx 0 Xxxxxxxx XX Encumbered
193 0000 Xxxxxxxxxxxx Xxxx. Xxxxxx XX
194 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX
195 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX
196 CBC @ Breckinridge 000-X Xxxxxxx XX Vacant Land
197 0000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX Joint Venture
198 0000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX Joint Venture
199 0000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX Joint Venture
200 0000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX Joint Venture
201 0000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX Joint Venture
202 0000 Xxxxxxxx Xxxxx Xxxxxxx XX Joint Venture
203 0000 Xxxxxxxx Xxxxx Xxxxxxx XX Joint Venture
204 0000 Xxxxxxxx Xxxxx Xxxxxxx XX Joint Venture
205 0000 Xxxxxxxx Xxxxx Xxxxxxx XX Joint Venture
000 0000-0000 Xxxxxxxx; 0000-0000 Xxxxxxxx Xxxxx Xxxxxxx XX Joint Venture
207 000 Xxxxxxxxxx Xxxx Xxxxxxxxxx XX
208 0000 Xxxxxx Xxxxxx Xxx Xxxxx XX
209 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX
210 000 Xxxx Xxxxxx Xxxx Xxxx XX
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
Owner
---------------------------------
164 Cabot Industrial Properties, L.P.
165 Cabot Industrial Properties, L.P.
166 Cabot Industrial Properties, L.P.
167 Cabot Industrial Properties, L.P.
168 Cabot Industrial Properties, L.P.
169 Cabot Industrial Properties, L.P.
000 XXX Xxxxxxxx Xxxxx LLC
000 XXX Xxxxxxxx Xxxxx LLC
000 XXX Xxxxxxxx Xxxxx LLC
173 Cabot Industrial Properties, L.P.
174 Cabot Industrial Properties, L.P.
175 Cabot Industrial Properties, L.P.
176 Cabot Industrial Properties, L.P.
177 Cabot Industrial Properties, L.P.
000 Xxxxxxx Xxxxxxxx Xxxxxx, LLC (GA)
000 Xxxxxxx Xxxxxxxx Xxxxxx, LLC (GA)
180 Cabot Industrial Properties, L.P.
181 Cabot Industrial Properties, L.P.
182 Cabot Industrial Properties, L.P.
183 Cabot Industrial Properties, L.P.
184 Cabot Industrial Properties, L.P.
185 Cabot Industrial Properties, L.P.
186 Cabot Industrial Properties, L.P.
187 Cabot Industrial Properties, L.P.
188 Cabot Industrial Properties, L.P.
189 Cabot Industrial Properties, L.P.
190 Cabot Industrial Properties, L.P.
191 Cabot Industrial Properties, L.P.
192 Cabot Industrial Properties, L.P.
193 Cabot Industrial Properties, L.P.
194 Cabot Industrial Properties, L.P.
195 Cabot Industrial Properties, L.P.
196 Cabot Industrial Properties, L.P.
197 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
198 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
199 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
200 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
201 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
202 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
203 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
204 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
205 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
206 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
207 Cabot Industrial Properties, L.P.
208 Cabot Industrial Properties, L.P.
209 Cabot Industrial Properties, L.P.
210 Cabot Industrial Properties, L.P.
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
Property Address City State Notes
--------------------------------------------------------------------------------------------------------
211 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx XX
212 0000 Xxxx 00xx Xxxxxx Xxxxxxx Xxxx XX
213 0000 Xxxx 00xx Xxxxxx Xxxxxxx Xxxx XX
214 0000 Xxxx 00xx Xxxxxx Xxxxxxx Xxxx XX
215 000 X. Xxxxxxx Xxxx Xxxxxxx XX Encumbered
216 000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxxxx XX Encumbered
217 000-000 Xxxxx Xxxxxxxxx Xxxxxxxxxx XX Encumbered
218 0000 Xxxx Xxxxx Xxxx Xxxxxxxxxx XX
219 000 Xxxxxxx Xxxx Xxxxxxx XX
220 000 Xxxxxxx Xxxx Xxxxxxx XX
221 0000 Xxxxxxx Xxxxxx Xxxxx XX
222 0000 Xxxxxxx Xxxxxx Xx. Xxxxxxx XX
223 0000 Xxxxx 00xx Xxxxxx Xxxxxxx Xxxxx XX
224 1445-1645 Xxxxxxxxx Ave. Elk Grove Village IL
225 000-000 Xxxx Xxxx Xxxxxxxxxxx XX Joint Venture
226 000-000 Xxxx Xxxx Xxxxxxxxxxx XX Joint Venture
227 0000 Xxxxxxxxxxx Xxxxx Xxxxx Xxxxxxxx XX Encumbered
228 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxx Xxxxxxxx XX Encumbered
229 0000 Xxxxx Xxxx Xxxxxxxxxxx XX Encumbered
230 0000 Xxxxxxxx Xxxxxx Xxxxx Xx. Xxxxxxx XX
231 0000 Xxxxx Xxxx Xxxxxxxxxx XX
232 0000 Xxxxx Xxxx Xxxxxxxxxx XX
233 000 Xxxxxxxxx Xxxx. Xxxxxxxxxxx XX
234 000 Xxxxxxxxxxx Xxxxx Xxxxxxxxxxx XX
000 Xxx Xxxxxxxxxx Xxxxx Xxxxxxxxxxx XX
236 000 Xxxxxxxxxxx Xx. Xxxx X Xxxxxxxxxxx XX
237 000 Xxxxxxx Xx & 425 Xxxxx Bensenville IL
238 0000-0000 Xxxxxxxxx Xxxxx Xxxxxxx XX
239 000-000 Xxxxxxx Xxxxx Xxxxxxxxxxx XX Joint Venture;
Encumbered
240 000-000 Xxxxxxxxx Xxxxx Xxxxxxxxxxx XX Joint Venture;
Encumbered
241 000 Xxxxxx Xxxxx Xxxxxxx XX Joint Venture
000 Xxxxx Xxxxx #0, Xxxxx Xxxx Xxxx XX
243 0000 Xxxxxx Xxxxx Xxxxxxxxxxxx XX
244 0000 Xxxxxxxxxxxxx Xxx Xxxxxx XX
245 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
246 0000 Xxxxxx Xxxxx, Xxxx X Xxxxxxxx XX
247 0 Xxxxxx Xxxxx Xxxxxxxx XX
248 00 Xxxxxx Xxxxx Xxxxxxxx XX
249 0000 Xxxxxxx Xxxxxxxx Xx. Xxxxxxxx XX Encumbered
250 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
251 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
252 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
253 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
254 0000 Xxxxx Xxxx Xxxxx Xxxxxxx XX
255 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
256 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
257 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
258 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
259 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
260 0000 Xxxxxx Xxxxx, Xxxx X Xxxxxxxx XX
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
Owner
---------------------------------
211 Cabot Industrial Properties, L.P.
212 Cabot Industrial Properties, L.P.
213 Cabot Industrial Properties, L.P.
214 Cabot Industrial Properties, L.P.
215 Cabot Industrial Properties, L.P.
216 Cabot Industrial Properties, L.P.
217 Cabot Industrial Properties, L.P.
218 Cabot Industrial Properties, L.P.
219 Cabot Industrial Properties, L.P.
220 Cabot Industrial Properties, L.P.
221 Cabot Industrial Properties, L.P.
222 Cabot Industrial Properties, L.P.
223 Cabot Industrial Properties, L.P.
224 Cabot Industrial Properties, L.P.
225 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
226 Industrial Properties Portfolio Subsidiary I, L.L.C. (DE)
227 Cabot Industrial Properties, L.P.
228 Cabot Industrial Properties, L.P.
229 Cabot Industrial Properties, L.P.
230 Cabot Industrial Properties, L.P.
231 Cabot Industrial Properties, L.P.
232 Cabot Industrial Properties, L.P.
233 Cabot Industrial Properties, L.P.
234 Cabot Industrial Properties, L.P.
235 Cabot Industrial Properties, L.P.
236 Cabot Industrial Properties, L.P.
237 Cabot Industrial Properties, L.P.
238 Cabot Industrial Properties, X.X.
000 XXX-Xxxxx Xxxxxxxxxx Xxxxxxxxx XX, X.X.X.
(XX) (Trustor/CCP-Cabot II/Bensenville, L.L.C.)
000 XXX-Xxxxx Xxxxxxxxxx Xxxxxxxxx
(XX) (Trustor/CCP-Cabot II/Bensenville, L.L.C.)
241 Industrial Properties Portfolio Subsidiary III, L.L.C. (DE)
242 X-X Xxxx Properties Limited Partnership
243 Cabot Industrial Properties, L.P.
244 Cabot Industrial Properties, L.P.
245 Cabot Industrial Properties, L.P.
246 Cabot Industrial Properties, L.P.
247 Cabot Industrial Properties, L.P.
248 Cabot Industrial Properties, L.P.
249 Cabot Industrial Properties, L.P.
250 Cabot Industrial Properties, L.P.
251 Cabot Industrial Properties, L.P.
252 Cabot Industrial Properties, L.P.
253 Cabot Industrial Properties, L.P.
254 Cabot Industrial Properties, L.P.
255 Cabot Industrial Properties, L.P.
256 Cabot Industrial Properties, L.P.
257 Cabot Industrial Properties, L.P.
258 Cabot Industrial Properties, L.P.
259 Cabot Industrial Properties, L.P.
260 Cabot Industrial Properties, L.P.
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
Property Address City State Notes
--------------------------------------------------------------------------------------------------------
261 0000 Xxxxxx Xxxxx, Xxxx X Xxxxxxxx XX
262 0000 Xxxxxx Xxxxx Xxxxxxxx XX
263 0000 Xxxxxx Xxxxx Xxxxxxxx XX
264 0000 Xxxxxx Xxxxx Xxxxxxxx XX
265 0000 Xxxxxx Xxxxx Xxxxxxxx XX
266 0000 Xxxxxx Xxxxx Xxxxxxxx XX
267 0000 Xxxxxx Xxxxx Xxxxxxxx XX
268 0000 Xxxxxx Xxxxx Xxxxxxxx XX
269 0000 Xxxxxxx Xxxx Xxxxxxxx XX Encumbered
270 0000 Xxxxxxx Xxxx Xxxxxxxx XX Encumbered
271 0000 Xxxxxxx Xxxx Xxxxxxxx XX Encumbered
272 00 Xxxxxxx Xxxxxx Xxxxxxxx XX Encumbered
273 00 Xxxxxxxx Xxxx Xxxxxxxxx XX
274 00 Xxxxxxxx Xxxx Xxxxxxxxx XX
275 00 Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX Encumbered
276 00 Xxxxx Xxxxxx Xxxxxxxxx XX
277 00 Xxxx Xxxxxxx Xxxx Xxxxxxx XX Encumbered
278 00 Xxxxxxxxxx Xxxxx Xxxxxx XX
279 0000 Xxxxxx Xxxxxx Jessup MD
280 7970 Tar Bay Drive Jessup MD
281 7700 Port Capital Drive Jessup MD Encumbered
282 0000 Xxxxxxxxx Xxxxx Savage MD
283 0000 Xxxxxxx Xxxxx Savage MD
284 0000 Xxxxxxx Xxxxx Jessup MD
285 8332 Bristol Court Jessup MD
286 8306 Patuxent Range Road Jessup MD
287 00000 Xxxxxxxx Xxxx Xxxxxxxxx Xxxxxxx XX
288 8350 Bristol Court Jessup MD
289 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx XX Encumbered
290 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx XX Encumbered
291 00 Xxxxxxx Xxxx Xxxxxxxxx MD Encumbered
292 00 Xxxxxxx Xxxx Xxxxxxxxx MD Encumbered
293 000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxx MD
294 000 Xxxxxxxxx Xxxx Xxxxxxxxx Heights MD
295 0000 Xxxxxxxx Xxxx Xxxxxxxx MD
296 8351 Bristol Court Jessup MD
297 0000-0000 Xxxxxxx Xxxxx Xxxxxx Xxxx XX Encumbered
298 0000 Xxxxxxx Xxxx Xxxxxxxx XX Encumbered
299 0000 Xxxxxxxxx Xxxxxx Xxxxx XX Encumbered
300 0000 Xxxxxxx Xxxxx Xxxxxx Xxxx XX Encumbered
301 0000 Xxxxxxx Xxxxx Xxxxxx Xxxx XX Encumbered
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
Owner
---------------------------------
261 Cabot Industrial Properties, L.P.
262 Cabot Industrial Properties, L.P.
263 Cabot Industrial Properties, L.P.
264 Cabot Industrial Properties, L.P.
265 Cabot Industrial Properties, L.P.
266 Cabot Industrial Properties, L.P.
267 Cabot Industrial Properties, L.P.
268 Cabot Industrial Properties, L.P.
269 Cabot Industrial Properties, L.P.
270 Cabot Industrial Properties, L.P.
271 Cabot Industrial Properties, L.P.
272 Cabot Industrial Properties, L.P.
273 Cabot Industrial Properties, L.P.
274 Cabot Industrial Properties, L.P.
275 Cabot Industrial Properties, L.P.
276 Cabot Industrial Properties, L.P.
277 Cabot Industrial Properties, L.P.
278 Cabot Industrial Properties, L.P.
279 Cabot Industrial Properties Holding, Inc. (DE)
280 Cabot Industrial Properties Holding, Inc. (DE)
281 Port Capital Center LLP (MD)
000 XXX Xxxxxxxxx Xxxxx Limited Partnership (VA)
283 CIT. Xxxxxxx Place Limited Partnership (VA)
000 XXX Xxxxxxx Xxxxx Limited Partnership (CA)
285 Cabot Industrial Properties Holding, Inc. (DE)
286 Cabot Industrial Properties Holding, Inc. (DE)
000 Xxxxxxxxx Xxxxxxxx Xxxx Limited Partnership
(MD) Guilford Property LLC (MD)
288 BWI Warehouse #4 Limited Partnership (MD)
Bristol Property, LLC (MD)
289 West Nursery Land Holding Limited Partnership
(MD) Linthicum Property LLC (MD)
290 West Nursery Land Holding Limited Partnership
(MD) Linthicum Property LLC (MD)
291 GR-6 Limited Partnership (MD) GR-7 Limited
Partnership (MD)
292 GR-6 Limited Partnership (MD) GR-7 Limited
Partnership (MD)
293 Cabot Industrial Properties, L.P.
294 Cabot Industrial Properties, L.P.
295 Cabot Industrial Properties, L.P.
296 Cabot Industrial Properties, L.P.
297 Cabot Industrial Properties, L.P.
298 Cabot Industrial Properties, L.P.
299 Cabot Industrial Properties, L.P.
300 Cabot Industrial Properties, L.P.
301 Cabot Industrial Properties, L.P.
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
PROPERTY ADDRESS CITY STATE NOTES
--------------------------------------------------------------------------------------------------------
302 0000 Xxxxxxx Xxxxx Xxxxxx Xxxx XX Encumbered
303 0000 Xxxxxx Xxxx Xxxxx XX Encumbered
304 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxx XX Encumbered
305 0000 Xxxx 00xx Xxxxxx Xxxxxxxxxxx XX
306 00000 Xxxxxx Xxxx Xxxxxxxxx XX
307 0000 Xxxxxxxxxxxx Xxxx. Xxxxxxxxx XX
308 00000 Xxxxxxx Xxxx Xxxx Xxxxxxxxx XX
309 00000 Xxxxxxx Xxxxxx Xxxxxxxxx XX
310 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx XX Encumbered
311 0000 Xxxxxxxxxxxx Xxxx. Xxxxxxxxx XX Encumbered
312 0000 Xxxxxxxxxxxx Xxxx. Xxxxxxxxx XX
313 0000 Xxxxxxxxxxxx Xxxx. Xxxxxxxxx XX
000 XX Xxx 00 & Xxx Xxxxxxxxx Xxxxxx XX
315 0000 Xxxxxxx Xxxx Xxxxxx XX
316 0000 Xxxxxxxx Xxxx. Xxxxxxxxx XX
317 0000 Xxxxxxxx Xxxx. Xxxxxxxxx XX
318 0000 Xxxxxxxx Xxxx. Xxxxxxxxx XX
319 00000 X. Xxxxxxxx Xxxx. Xxxxxxxxx XX
320 0000 X. X-00 Xxxxxxx Xx. Xxxxxxxxx XX
321 000 Xxxxx Xxxxx Xxxx Xxxxxxxxxx XX
322 000 Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx XX
323 000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx XX
324 00 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx XX
325 Volkswagen BTS-C NY/NJ Development
000 0 Xxxxxx Xxxx Xxxx Xxxxxx XX
000 0 Xxxxxx Xxxx Xxxx Xxxxxx XX
328 000 Xxxxxxxxxx Xxxx. Xxxx Xxxxxx XX
329 000 Xxxxxxxxxx Xxxxx Xxxx Xxxxxx XX
330 000 Xxxxxxxxxx Xxxxx Xxxx Xxxxxx XX
331 000 Xxxx Xxxxxx Xxxx Xxxxxx XX
332 000 Xxxx Xxxxxx Xxxx Xxxxxx XX Encumbered
333 0 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx XX
334 000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxxxx XX
335 000 Xxx Xxxxxxx Xxxxxx Xxxxxxxxxx XX Encumbered
336 0000 Xxxxxx Xxxxx Xxxxxxxx XX
337 0000-0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
338 0000-0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
339 0000 Xxxxxxxxxxxxx Xxxxxx Xxxxxxxx XX
340 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxx XX
341 0000 Xxxx Xxxx Xxxxxxxx Xxxxxx XX
342 0000 Xxxx Xxxxxx Xxxxx Xxxxxxxx XX
343 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX
344 0000 Xxxxxx Xxxxx Xxxxxxxx XX
345 0000 Xxxxxxxxxxxxx Xxxx Xxxxxxxxxx XX
346 0000 Xxxxxxxxxxxxx Xxxx Xxxxxxxxxx XX
347 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX Encumbered
348 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX Encumbered
349 0000 Xxxx Xxxxxx Xxxx Xxxx Xxx XX
350 0000 Xxxx Xxxxxx Xxxx Xxxx Xxx XX
351 00000 Xxxxxxx Xxxx Xxxx Xxx XX
352 00000 Xxxxxxx Xxxx Xxxx Xxx XX
353 00000 Xxxxxxx Xxxx Xxxx Xxx XX
354 00000 Xxxxxxx Xxxx Xxxx Xxx XX
355 00000 Xxxxxxx Xxxx Xxxx Xxx XX
356 11083-11087 Kenwood Road Blue Ash OH
357 00000 Xxxxxxx Xxxx Xxxx Xxx XX
358 0000 Xxxxx Xxxx Xxxx Xxx XX
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
OWNER
---------------------------------
302 Cabot Industrial Properties, L.P.
303 Cabot Industrial Properties, L.P.
304 Cabot Industrial Properties, L.P.
305 Cabot Industrial Properties, L.P.
306 Cabot Industrial Properties, L.P.
307 Cabot Industrial Properties, L.P.
308 Cabot Industrial Properties, L.P.
309 Cabot Industrial Properties, L.P.
310 Cabot Industrial Properties, L.P.
311 Cabot Industrial Properties, L.P.
312 Cabot Industrial Properties, L.P.
313 Cabot Industrial Properties, L.P.
314 Cabot Industrial Properties, L.P.
315 Cabot Industrial Properties, L.P.
316 Cabot Industrial Properties, L.P.
317 Cabot Industrial Properties, L.P.
318 Cabot Industrial Properties, L.P.
319 Cabot Industrial Properties, L.P.
320 Cabot Industrial Properties, L.P.
321 Cabot Industrial Properties, L.P.
322 Cabot Industrial Properties, L.P.
323 Cabot Industrial Properties, L.P.
324 Cabot Industrial Properties, L.P.
325 Cabot Industrial Properties, L.P.
326 Cabot Industrial Properties, L.P.
327 Cabot Industrial Properties, L.P.
328 Cabot Industrial Properties, L.P.
329 Cabot Industrial Properties, L.P.
330 Cabot Industrial Properties, L.P.
331 Cabot Industrial Properties, L.P.
332 Cabot Industrial Properties, L.P.
333 Cabot Industrial Properties, L.P.
334 Cabot Industrial Properties, L.P.
335 Cabot Industrial Properties, L.P.
336 Cabot Industrial Properties, L.P.
337 Cabot Industrial Properties, L.P.
338 Cabot Industrial Properties, L.P.
339 Cabot Industrial Properties, L.P.
340 Cabot Industrial Properties, L.P.
341 Cabot Industrial Properties, L.P.
342 Cabot Industrial Properties, L.P.
343 Cabot Industrial Properties, L.P.
344 Cabot Industrial Properties, L.P.
345 Cabot Industrial Properties, L.P.
346 Cabot Industrial Properties, L.P.
347 Cabot Industrial Properties, L.P.
348 Cabot Industrial Properties, L.P.
349 Cabot Industrial Properties, L.P.
350 Cabot Industrial Properties, L.P.
351 Cabot Industrial Properties, L.P.
352 Cabot Industrial Properties, L.P.
353 Cabot Industrial Properties, L.P.
354 Cabot Industrial Properties, L.P.
355 Cabot Industrial Properties, L.P.
356 Cabot Industrial Properties, L.P.
357 Cabot Industrial Properties, L.P.
358 Cabot Industrial Properties, L.P.
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
PROPERTY ADDRESS CITY STATE NOTES
--------------------------------------------------------------------------------------------------------
359 124 Commerce Blvd Loveland OH
360 6350 Brackbill Boulevard Mechanicsburg PA Encumbered
361 6360 Brackbill Boulevard Mechanicsburg PA Encumbered
362 201 Cumberland Parkway Harrisburg PA
363 181 Fulling Mill Road Harrisburg PA
364 5045 Ritter Road Mechanicsburg PA Encumbered
365 860 Marine Drive Rock Hill SC Encumbered
366 3965 Pilot Drive Memphis TN
367 555 Airline Drive Coppell TX
368 4151 SH 121 North Grapevine TX
369 4050 Corporate Dr Grapevine TX
370 2201-2221 Luna Road Carrollton TX
371 4155 Patriot Drive Grapevine TX
372 4255 Patriot Drive Grapevine TX
373 912 113th Street Arlington TX
374 455 Airline Drive Coppell TX
375 850 North Lake Drive Coppell TX
376 1800 10th Street Plano TX Encumbered
377 1808 10th Street Plano TX Encumbered
378 11011 Regency Crest Drive Dallas TX
379 1900 Diplomat Drive Farmers Branch TX
380 11411 Hillguard Road Dallas TX
381 11460-11480 Hillguard Rd Dallas TX
382 11550-11560 Hillguard Rd Dallas TX
383 3601 East Plano Parkway Plano TX Encumbered
384 4055 Corporate Dr Grapevine TX
385 2055 Diplomat Drive Farmers Branch TX
386 1413 Bradley Lane Carrollton TX
387 820-860 Avenue F Plano TX
388 1000 Shiloh Road Plano TX
389 885 East Collins Blvd Richardson TX
390 2300 E Randol Mill Road Arlington TX
391 1600 Capital Avenue Plano TX Encumbered
392 1700 Capital Avenue Plano TX Encumbered
393 701 N Glenville Drive Richardson TX Joint Venture;
Encumbered
394 705 N Glenville Drive Richardson TX Joint Venture;
Encumbered
395 709 N Glenville Drive Richardson TX Joint Venture;
Encumbered
396 715 N Glenville Drive Richardson TX Joint Venture;
Encumbered
397 2701 East Plano Parkway Plano TX
398 2801 East Plano Parkway Plano TX
399 2805 East Plano Parkway Plano TX
400 2700 Summit Avenue Plano TX
401 CTC @ Plano-C Plano TX Vacant Land
402 CTC @ Valwood-C Dallas TX Development
403 2412 Jefferson Davis High Alexandria VA
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
OWNER
---------------------------------
359 Cabot Industrial Properties, L.P.
360 Cabot Industrial Properties, L.P.
361 Cabot Industrial Properties, L.P.
362 Cabot Industrial Properties, L.P.
363 Cabot Industrial Properties, L.P.
364 Cabot Industrial Properties, L.P.
365 Cabot Industrial Properties, L.P.
366 Cabot Industrial Properties, L.P.
367 Cabot Industrial Properties, L.P.
368 Cabot Industrial Properties, L.P. by merger of
interest from Industrial Properties Holding, L.P. (DE)
369 Cabot Industrial Properties, L.P. by merger of
interest from Industrial Properties Holding, L.P. (DE)
370 Cabot Industrial Properties, L.P.
371 Cabot Industrial Properties, L.P.
372 Cabot Industrial Properties, L.P.
373 Cabot Industrial Properties, L.P.
374 Cabot Industrial Properties, L.P.
375 Cabot Industrial Properties, L.P.
376 Cabot Industrial Properties, L.P.
377 Cabot Industrial Properties, L.P.
378 Cabot Industrial Properties, L.P.
379 Cabot Industrial Properties, L.P.
380 Cabot Industrial Properties, L.P.
381 Cabot Industrial Properties, L.P.
382 Cabot Industrial Properties, L.P.
383 Cabot Industrial Properties, L.P.
384 Cabot Industrial Properties, L.P.
interest from Industrial Properties Holding, L.P. (DE)
385 Cabot Industrial Properties, L.P.
386 Cabot Industrial Properties, L.P.
387 Cabot Industrial Properties, L.P.
388 Cabot Industrial Properties, L.P.
389 Cabot Industrial Properties, L.P.
390 Cabot Industrial Properties, L.P.
391 Cabot Industrial Properties, L.P.
392 Cabot Industrial Properties, L.P.
393 CCP-Cabot II Glenville, L.P. (DE)
394 CCP-Cabot II Glenville, L.P. (DE)
395 CCP-Cabot II Glenville, L.P. (DE)
396 CCP-Cabot II Glenville, L.P. (DE)
397 Cabot Industrial Properties, L.P.
398 Cabot Industrial Properties, L.P.
399 Cabot Industrial Properties, L.P.
400 Cabot Industrial Properties, L.P.
401 Cabot Industrial Properties, L.P.
402 Cabot Industrial Properties, L.P.
403 Cabot Industrial Properties Holding, Inc. (DE)
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
PROPERTY ADDRESS CITY STATE NOTES
--------------------------------------------------------------------------------------------------------
404 2514 Jefferson Davis High Alexandria VA
405 405 Swann Street Alexandria VA
406 326-400 Calvert Avenue Alexandria VA
407 446 Calvert Avenue Oakville (park) Alexandria VA
408 2604-2610 Jefferson Davis Alexandria VA
409 401-403 Murry's Avenue Alexandria VA
410 2402-2520 Oakville Street Alexandria VA
411 420-444 Swann Street Alexandria VA
412 45901 Nokes Blvd. Sterling VA
413 Cabot Tech Beaumeade Bldg 1 Ashburn VA
414 Cabot Tech Beaumeade Bldg 2 Ashburn VA
415 45905 Nokes Blvd. Sterling VA
416 44633 Guilford Road Ashburn VA Encumbered
417 44645 Guilford Road Ashburn VA Encumbered
418 21641 Beaumeade Circle Ashburn VA Encumbered
419 CTC @ Dulles-C Herndon VA Development
420 CTC @ Town Crossing-C Loudoun Cty VA Vacant Land
421 CTC @ Beaumede II-C Ashburn VA Vacant Land
422 21902 64th Avenue - South Kent WA
423 8005 S. 266th Street Kent WA
424 22001 68th Avenue - South Kent WA
425 21903 68th Avenue - South Kent WA
426 22003 67th Avenue - South Kent WA
427 21804 64th Avenue - South Kent WA
428 26507 79th Avenue - South Kent WA
429 Woodland Industrial Woodland CA Encumbered
430 San Jose Industrial San Jose CA Partial ground lease
431 Warm Springs Industrial Fremont CA
432 Mission Industrial Fremont CA
433 Wrigley Creek Industrial Milpitas CA
434 O'Donnell IBC Tustin CA
435 O'Donnell Cerritos Cerritos CA
436 SoCal Alondra Santa Fe Springs CA
437 SoCal Bell Gardens Bell Gardens CA
438 Oakridge Grand Prairie TX
439 Northwest Houston
440 Silber II Houston TX
441 Wynnwood Houston TX
442 Willowbend Houston TX
443 Southwest Houston
444 Corporate IV Houston TX
445 Sugarland Industrial Center Houston TX
446 Franklin Denver CO
447 360 Commerce Center Grand Prairie TX
448 Vista Tech Center San Diego CA
449 4000 Greenbriar Stafford TX
450 Oxnard Portfolio Oxnard CA
451 San Diego Distribution
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
OWNER
---------------------------------
404 Cabot Industrial Properties Holding, Inc. (DE)
405 Cabot Industrial Properties Holding, Inc. (DE)
406 Cabot Industrial Properties Holding, Inc. (DE)
407 Cabot Industrial Properties Holding, Inc. (DE)
408 Cabot Industrial Properties Holding, Inc. (DE)
409 Cabot Industrial Properties Holding, Inc. (DE)
410 Cabot Industrial Properties Holding, Inc. (DE)
411 Cabot Industrial Properties Holding, Inc. (DE)
412 Cabot Industrial Properties, L.P.
413 Cabot Industrial Properties, L.P.
414 Cabot Industrial Properties, L.P.
415 Cabot Industrial Properties, L.P.
416 Cabot Industrial Properties, L.P.
417 Cabot Industrial Properties, L.P.
418 Cabot Industrial Properties, L.P.
419 Cabot Industrial Properties, L.P.
420 Cabot Dulles Town Crossing, L.L.C. (DE)
421 Cabot Industrial Properties, L.P.
422 Cabot Industrial Properties, L.P.
423 Cabot Industrial Properties, L.P.
424 Cabot Industrial Properties, L.P.
425 Cabot Industrial Properties, L.P.
426 Cabot Industrial Properties, L.P.
427 Cabot Industrial Properties, L.P.
428 Cabot Industrial Properties, L.P.
429 CalWest Industrial Properties, LLC
430 CalWest Industrial Properties, LLC
431 CalWest Industrial Properties, LLC
432 CalWest Industrial Properties, LLC
433 CalWest Industrial Properties, LLC
434 CalWest Industrial Properties, LLC
435 CalWest Industrial Properties, LLC
436 CalWest Industrial Properties, LLC
437 CalWest Industrial Properties, LLC
438 CalWest Texas Properties L.P.
439
440 CalWest Texas Properties L.P.
441 CalWest Texas Properties L.P.
442 CalWest Texas Properties L.P.
443
444 CalWest Texas Properties L.P.
445 CalWest Texas Properties L.P.
446 CalWest Industrial Properties, LLC
447 CalWest Texas Properties L.P.
448 CalWest Industrial Properties, LLC
449 CalWest Texas Properties L.P.
450 CalWest Industrial Properties, LLC
451
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
Prroperty Address City State Notes
--------------------------------------------------------------------------------------------------------
452 Carmel Mountain San Diego CA
453 Miramar Distribution San Diego CA
454 Rancho Bernardo San Diego CA Encumbered
455 Frankford Trade Center Carollton TX
456 Sun Valley Industrial Sun Valley CA
457 Foothill/Ramona
458 Foothill Bus. Center Irwindale CA
459 Ramona Bus. Pk Irwindale CA
460 Schabarum Lots 5&6 Irwindale CA
461 ASP Valencia Valencia CA
462 Chatsworth
463 ASP Chatsworth Chatsworth CA
464 Lurline Chatsworth CA
465 ASP Burbank North Hollywood CA
466 North Orange County Business Parks
467 ASP Anaheim Anaheim CA
468 Commerce Park Anaheim Anaheim CA
469 Fullerton Business Center Fullerton CA
470 North County Yorba Linda CA
471 South Orange County Industrial
472 ASP Irvine Irvine CA
473 Lake Forest Lake Forest CA
474 Cotton Center Phoenix AZ
475 GD Industrial Portfolio
476 Bus. Interiors & 32 ac land ($1.4M) Irving TX
477 Avenue R Grand Prairie TX Encumbered
478 Ngte. IV -FedEx/Wood Dr/Bldg 16 & pkg lot Garland TX
479 Market/Perimeter Garland TX Encumbered
480 8220 Ambassador Row Dallas TX
481 Corporate Place Dallas TX
482 CalWest Mid Cities Industrial
483 Carmenita Cerritos CA
484 Alondra Distribution Cerritos CA Ground lease
485 Downey Downey CA Encumbered
486 Whittier Whittier CA
487 Kent Valley
488 Valley Freeway Business Center Kent WA
489 West Valley Business Center Kent WA
490 Mill Creek Distribution Center Kent WA
491 Southcenter West Business Park Tukwila WA
492 Algona I Algona WA
493 Algona II Algona WA
494 Tukwila Tukwila WA
495 Woodinville Woodinville WA
496 Everett
497 Everett 526 Everett WA
498 Everett Industrial Center Everett WA
499 Seattle Metro
500 Georgetown Center Seattle WA
501 City Commerce Park Seattle WA
502 Sea-Tac Industrial Park Seattle WA
503 16th Avenue Seattle WA
504 200th Street Seattle WA
505 360 Commerce Center II Grand Prairie TX
506 North San Diego Industrial
507 Carlsbad Pointe Carlsbad CA
508 Vista Distribution Vista CA Encumbered
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
Owner
---------------------------------
452 CalWest Industrial Properties, LLC
453 CalWest Industrial Properties, LLC
454 CalWest Industrial Properties, LLC
455 CalWest Texas Properties L.P.
456 CalWest Industrial Properties, LLC
457
458 CalWest Industrial Properties, LLC
459 CalWest Industrial Properties, LLC
460 CalWest Industrial Properties, LLC
461 CalWest Industrial Properties, LLC
462
463 CalWest Industrial Properties, LLC
464 CalWest Industrial Properties, LLC
465 CalWest Industrial Properties, LLC
466
467 CalWest Industrial Properties, LLC
468 CalWest Industrial Properties, LLC
469 CalWest Industrial Properties, LLC
470 CalWest Industrial Properties, LLC
471
472 CalWest Industrial Properties, LLC
473 CalWest Industrial Properties, LLC
474 CalWest Industrial Properties, LLC
475
476 CalWest Texas Properties L.P.
477 CalWest Texas Properties L.P.
478 CalWest Texas Properties L.P.
479 CalWest Texas Properties L.P.
480 CalWest Texas Properties L.P.
481 CalWest Texas Properties L.P.
482
483 CalWest Industrial Properties, LLC
484 CalWest Industrial Properties, LLC
485 CalWest Industrial Properties, LLC
486 CalWest Industrial Properties, LLC
487
488 CalWest Industrial Properties, LLC
489 CalWest Industrial Properties, LLC
490 CalWest Industrial Properties, LLC
491 CalWest Industrial Properties, LLC
492 CalWest Industrial Properties, LLC
493 CalWest Industrial Properties, LLC
494 CalWest Industrial Properties, LLC
495 CalWest Industrial Properties, LLC
496
497 CalWest Industrial Properties, LLC
498 CalWest Industrial Properties, LLC
499
500 CalWest Industrial Properties, LLC
501 CalWest Industrial Properties, LLC
502 CalWest Industrial Properties, LLC
503 CalWest Industrial Properties, LLC
504 CalWest Industrial Properties, LLC
505 CalWest Texas Properties L.P.
506
507 CalWest Industrial Properties, LLC
508 CalWest Industrial Properties, LLC
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
Property Address City State Notes
--------------------------------------------------------------------------------------------------------
509 Northpointe Tech Center Carlsbad CA
510 Phoenix Business Parks
511 Baseline Business Park Tempe AZ
512 Hohokam 10 East Tempe AZ
513 Hohokam 10 West Phoenix AZ
514 Broadwood Business Center Mesa AZ
515 Phoenix Distribution
516 Fairmont Commerce Center Tempe AZ
517 Fifth Street Industrial Phoenix AZ
518 Magnolia Industrial Phoenix AZ
519 Geneva & 2 ac land Tempe AZ
520 Fleetside
521 Benicia Comm. Center I Benicia CA
522 Benicia Comm. Center II Benicia CA
523 Benicia whse, dist & land Benicia CA
524 Fairfield Comm. Center Benicia CA
525 Tri-Valley Industrial
526 Concord Business Park Concord CA
527 Contra Costa Diablo Concord CA
528 Sierra Trinity Dublin Dublin CA
529 Livermore Comm. Center Livermore CA
530 Vasco Bus. Center Livermore CA
531 Concord N. Comm. Center I & II Concord CA
532 Airway Business Center Livermore CA
533 West Sacramento Industrial
534 West Sacramento West Sacramento CA
535 Woodland Fort James Woodland CA
536 Overland Court I Sacramento CA
537 Terminal Street Sacramento CA
538 Scott Creek Business Park Fremont CA
539 PDX Commerce Parks
540 Airport Business Center Portland OR
541 Columbia Comm. Park I & IV Portland OR
542 Airport Way Comm. Park Portland OR
543 158th Comm. Park Portland OR
544 Renton Commerce Center Renton WA Development
545 Bay View Industrial
546 Eden Plaza Hayward CA Encumbered
547 Eden Rock 10 Hayward CA Encumbered
548 Eden Rock 5 Hayward CA Encumbered
549 Eden Rock 9 Hayward CA Encumbered
550 Fremont Fremont CA Encumbered
551 Hesperian Hayward CA
552 Eden Landing Hayward CA
553 Silicon Valley Business Parks
554 Comm. Park San Tomas Santa Clara CA
555 Sacramento Business Parks
556 Bradshaw Sacramento CA
557 Horn Road Sacramento CA Encumbered
558 Madison West North Highlands CA
559 Norwood Sacramento CA
560 Striker Ave. Sacramento CA
561 Miramar Home Center
562 Homefair San Diego CA Ground lease
563 Miramar Business Park San Diego CA Ground lease
564 North San Diego Business Parks
565 Bay San Marcos San Marcos CA
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
Owner
---------------------------------
509 CalWest Industrial Properties, LLC
510
511 CalWest Industrial Properties, LLC
512 CalWest Industrial Properties, LLC
513 CalWest Industrial Properties, LLC
514 CalWest Industrial Properties, LLC
515
516 CalWest Industrial Properties, LLC
517 CalWest Industrial Properties, LLC
518 CalWest Industrial Properties, LLC
519 CalWest Industrial Properties, LLC
520
521 CalWest Industrial Properties, LLC
522 CalWest Industrial Properties, LLC
523 CalWest Industrial Properties, LLC
524 CalWest Industrial Properties, LLC
525
526 CalWest Industrial Properties, LLC
527 CalWest Industrial Properties, LLC
528 CalWest Industrial Properties, LLC
529 CalWest Industrial Properties, LLC
530 CalWest Industrial Properties, LLC
531 CalWest Industrial Properties, LLC
532 CalWest Industrial Properties, LLC
533
534 CalWest Industrial Properties, LLC
535 CalWest Industrial Properties, LLC
536 CalWest Industrial Properties, LLC
537 CalWest Industrial Properties, LLC
538 CalWest Industrial Properties, LLC
539
540 CalWest Industrial Properties, LLC
541 CalWest Industrial Properties, LLC
542 CalWest Industrial Properties, LLC
543 CalWest Industrial Properties, LLC
544 CalWest Industrial Properties, LLC
545
546 CalWest Industrial Properties, LLC
547 CalWest Industrial Properties, LLC
548 CalWest Industrial Properties, LLC
549 CalWest Industrial Properties, LLC
550 CalWest Industrial Properties, LLC
551 CalWest Industrial Properties, LLC
552 CalWest Industrial Properties, LLC
553
554 CalWest Industrial Properties, LLC
555
556 CalWest Industrial Properties, LLC
557 CalWest Industrial Properties, LLC
558 CalWest Industrial Properties, LLC
559 CalWest Industrial Properties, LLC
560 CalWest Industrial Properties, LLC
561
562 CalWest Industrial Properties, LLC
563 CalWest Industrial Properties, LLC
564
565 CalWest Industrial Properties, LLC
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS
Property Address City State Notes
--------------------------------------------------------------------------------------------------------
566 Escondido Escondido CA
567 San Marcos Commerce San Marcos CA
568 Airport Business Parks
569 Harbor Santa Ana CA
570 Harbor Warner Santa Ana CA
571 Irvine - Cartwright Irvine CA
572 Tustin BP Tustin CA Ground lease
573 plus: Tustin Mini-Storage Tustin CA
574 Baldwin Park Industrial Baldwin Park CA Encumbered
575 Garden Grove Industrial
576 Garden Grove Industrial Garden Grove CA Encumbered
577 Hunt Ave Garden Grove CA
578 Garden Grove Business Parks
579 Garden Grove Business Center Garden Grove CA Encumbered
580 Los Alamitos Los Alamitos CA
581 Hoover Garden Grove CA
582 Inland Empire Business Parks
583 Mountain Ave. Upland CA
584 Crescent & 10.5 ac land Rancho Cucamonga CA
585 Golden West Rancho Cucamonga CA Encumbered
586 Inland Empire Distribution
587 Chino Chino CA Encumbered
588 Fontana Fontana CA Encumbered
589 Etiwanda Ontario CA
590 Riverview San Bernardino CA
591 South Los Angeles Industrial
592 Montebello Montebello CA
593 North Orange County Industrial
594 Acacia Fullerton CA
595 Tower Park Anaheim CA
596 South Orange County Business Parks
597 Pacific Park Aliso Viego CA
598 Spectrum Centre Lake Forest CA
599 Irvine BP Irvine CA Ground lease
600 Rancho Santa Margarita Rancho Santa Margarita CA Development
601 Las Vegas Las Vegas NV Encumbered
602 Southwest Portland Business Parks
603 Park 217 BC I / II / III / Louis Tigard OR
604 Southwest Comm. Center Tigard OR
605 Nelson Business Center Portland OR
606 Wilsonville BC I Wilsonville OR
607 Willsonville BC II / III / IV Wilsonville OR
608 Parkway Industrial Wilsonville OR
609 Rivergate Industrial
610 Kelley Pt Dist. Center I/II & land ($5.17Portland OR
611 Marine Drive Dist. Center I, II & III Portland OR
612 Swan Island Industry Center Portland OR
613 San Diego Tech Center San Diego CA
614 Mayfield Business Center Arlington TX Development
615 Skyline Industrial Mesquite TX
SCHEDULE 4.27
-------------
REAL PROPERTY ASSETS (continued)
Owner
---------------------------------
566 CalWest Industrial Properties, LLC
567 CalWest Industrial Properties, LLC
568
569 CalWest Industrial Properties, LLC
570 CalWest Industrial Properties, LLC
571 CalWest Industrial Properties, LLC
572 CalWest Industrial Properties, LLC
573 CalWest Industrial Properties, LLC
574 CalWest Industrial Properties, LLC
575
576 CalWest Industrial Properties, LLC
577 CalWest Industrial Properties, LLC
578
579 CalWest Industrial Properties, LLC
580 CalWest Industrial Properties, LLC
581 CalWest Industrial Properties, LLC
582
583 CalWest Industrial Properties, LLC
584 CalWest Industrial Properties, LLC
585 CalWest Industrial Properties, LLC
586
587 CalWest Industrial Properties, LLC
588 CalWest Industrial Properties, LLC
589 CalWest Industrial Properties, LLC
590 CalWest Industrial Properties, LLC
591
592 CalWest Industrial Properties, LLC
593
594 CalWest Industrial Properties, LLC
595 CalWest Industrial Properties, LLC
596
597 CalWest Industrial Properties, LLC
598 CalWest Industrial Properties, LLC
599 CalWest Industrial Properties, LLC
600 CalWest Industrial Properties, LLC
601 CalWest Industrial Properties, LLC
602
603 CalWest Industrial Properties, LLC
604 CalWest Industrial Properties, LLC
605 CalWest Industrial Properties, LLC
606 CalWest Industrial Properties, LLC
607 CalWest Industrial Properties, LLC
608 CalWest Industrial Properties, LLC
609
610 CalWest Industrial Properties, LLC
611 CalWest Industrial Properties, LLC
612 CalWest Industrial Properties, LLC
613 CalWest Industrial Properties, LLC
614 CalWest Texas Properties L.P.
615 CalWest Texas Properties L.P.
