Exhibit 99.(b)(1)
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PERSONAL AND CONFIDENTIAL
October 26, 2001
Xx. Xxxxxxxxxxx X. Xxxxxx
Vice President - Capital Markets
RREEF Real Estate Investment Managers
000 Xxxxx Xxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Project Wyoming Financing
Gentlemen:
Subject to the terms and conditions set forth herein and in the attached form of
Loan Agreement (the "Loan Agreement"), this letter represents (i) the commitment
of Xxxxxxx Xxxxx Mortgage Company ("GSMC") to provide, or cause a third party to
provide, to CalWest Industrial Properties, LLC ("CalWest") and certain of its
subsidiaries (CalWest and such subsidiaries are collectively referred to in this
commitment letter as "Borrower") the Loan described in the Loan Agreement, and
(ii) a commitment by CalWest to borrow the Loan if the proposed acquisition of
Cabot Industrial Trust occurs. GSMC shall under all circumstances be the initial
Administrative Agent under the Loan Agreement, even if it is not the initial
Lender thereunder.
In order to accept this commitment, you must execute this commitment letter in
the space indicated below and return it to us not later than October 29, 2001,
together with the commitment fee in the amount agreed by us in writing (the
"Commitment Fee") and the advisory fee in the amount agreed by us in writing
(the "Advisory Fee"), as well as additional funds in the amount of $250,000 (the
"Expense Deposit"), which additional funds shall constitute a deposit against
the costs and expenses which you are to defray in accordance with this
commitment letter. Your failure to execute and return this commitment and remit
such funds on or prior to such date shall result in the automatic termination
hereof (and if we receive the Commitment Fee, the Advisory Fee and/or the
Expense Deposit from you but do not receive this commitment letter executed by
you, we shall return such amounts to you reasonably promptly following such
automatic termination).
The following terms and conditions shall apply with respect to GSMC's
commitment, and the terms and conditions of the Loan shall be as set forth in
the Loan Agreement. Capitalized terms used but not defined herein shall have the
respective meanings set forth in the Loan Agreement.
Commitment Fee; Advisory The Commitment Fee and the Advisory Fee shall
Fee: each be earned and payable upon mutual execution
of this commitment letter. The Commitment Fee
and the Advisory Fee shall each be
nonrefundable, except as follows:
(1) If no proceeds of the Loan are ever advanced
due to GSMC's determination that one of the
events described under "Material Adverse Change"
below (other than the first sentence thereof)
has occurred, then the Expense Deposit, the
Commitment Fee and the Advisory Fee (net of the
actual expenses of GSMC, the Lenders and the
Agents, including, without limitation, legal,
accounting and diligence fees and hedging costs,
to the extent such hedging costs are payable in
accordance with the next sentence) shall be
returned to Borrower; or (2) if, for any other
reason that is not the fault of Borrower and
which does not constitute a default by Borrower
under the Merger Agreement, no proceeds of the
Loan are ever advanced, and Borrower does not
receive break-up expenses under its merger
agreement with Cabot Industrial Trust, then the
Expense Deposit and the Commitment Fee (net of
the actual expenses of GSMC, the Lenders and the
Agents as set forth in clause (1)), but not the
Advisory Fee, shall be returned to Borrower. The
hedging costs referenced above will only be
payable by Borrower (a) to the extent Borrower
was previously notified of the existence of such
xxxxxx and provided copies of the relevant
documentation, such as trade confirms, and (b)
to the extent such hedging costs, together with
all of the other expenses of GSMC, the Lenders
and the Agents, do not exceed the original
aggregate amount of the Commitment Fee and the
Advisory Fee.
Expenses: All of GSMC's, the Lenders' and the Agents'
expenses in connection with this commitment
letter and the Loan will be paid by Borrower,
regardless of whether the Loan closes.
Material Adverse Change: GSMC's obligation to fund the Loan or to cause
the Loan to be funded shall be subject to the
conditions set forth in the Loan Agreement.
In addition, such obligation shall be subject to
the condition that on or after the date hereof
there shall not have occurred any of the
following: (i) a suspension or material
limitation in trading in securities generally on
the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities
declared by either Federal or New York State
authorities or a material disruption in
commercial banking or securities settlement or
clearance services in the United States; (iii)
the outbreak or escalation of hostilities
involving the United States or the declaration
by the United States of a national emergency or
war or the occurrence of any other calamity or
crisis or (iv) any change in national or
international financial, political or economic
conditions if GSMC, in its sole discretion,
determines that the effect of any such event
specified in clause (iii) or (iv) would
materially impair the value of the Borrower's
collateral or the value of the Loan.
2
Notwithstanding the foregoing, if (i) GSMC
elects not to cause the Loan to be funded
because of the failure to meet the condition
precedent described in the preceding sentence
and (ii) within 30 business days of the initial
occurrence of the first event or condition
described in the preceding sentence giving rise
to such failure to meet such condition precedent
GSMC determines, in its sole discretion, that
(A) in the case of any event or condition
specified in clause (i) or (ii) of the preceding
sentence, such event or condition is not
continuing, not unresolved and not occurring,
and (B) in the case of any event or condition
specified in clause (iii) or (iv) of the
preceding sentence, neither the value of the
Borrower's collateral nor the value of the Loan
remain materially impaired, then GSMC shall from
such date once again be obligated to cause the
Loan to be funded, subject to all of the terms
and conditions contained herein (including,
without limitation, the condition precedent set
forth in the preceding sentence) and in the Loan
Agreement. Notwithstanding the foregoing,
Borrower shall have the right during such 30
business day period to solicit alternate
financing. If Borrower receives a bona fide
offer for alternate financing (a "Financing
Offer"), Borrower may only accept such Financing
Offer if Borrower first gives GSMC the option,
at GSMC's sole discretion, to either (a) cause
the Loan to be funded, subject to all of the
terms and conditions contained herein (other
than this paragraph), (b) provide financing on
the terms and conditions of the Financing Offer,
or (c) terminate the commitment and permit
Borrower to accept such Financing Offer (in
which case the Expense Deposit, the Commitment
Fee and the Advisory Fee, net of the actual
expenses of GSMC, the Lenders and the Agents
(subject to the limitation on hedging costs set
forth under "Commitment Fee; Advisory Fee"
above), shall be returned to Borrower). If GSMC
does not elect option (a) or (b) within 15 days
after written notice from Borrower, GSMC shall
be deemed to have elected option (c) and the
commitment shall terminate.
Exclusivity / Confidentiality: Until the public announcement of the proposed
tender offer, Borrower, GSMC, the Lenders and
the Agents shall not communicate with any other
party in connection with the Loan or this
commitment letter (including the information
contained herein and in the Loan Agreement), and
shall keep same confidential, except as required
by applicable law and except for disclosures to
legal counsel, accountants and other
professional advisors to Borrower, the Lenders
or GSMC, as the case may be, so long as such
persons agree to maintain the confidential
nature hereof, and unless otherwise mutually
agreed upon by Borrower and GSMC.
Indemnification: Xxxxxxxx agrees to the provisions with respect
to the indemnity and other matters set forth in
Annex A, which is incorporated by reference into
this commitment letter.
Anticipated Closing: Early December 2001. Borrower acknowledges and
agrees that if the Closing Date does not occur
on or prior to January 15, 2001, subject to the
30-business day extension provided for above in
connection with a Material Adverse Change, this
commitment letter shall terminate (except that
the respective sections entitled "Expenses",
"Exclusivity/Confidentiality" and
"Indemnification" shall survive any such
termination).
3
Miscellaneous: This commitment letter shall be governed by the
laws of the State of New York.
The relationship between Borrower (and its
affiliates) and the Lenders will be that of
debtor and creditor, and nothing herein or in
the loan documentation or any other prior
writing or course of action shall be construed
to create any partnership or other fiduciary
relationship of any sort whatsoever between the
two.
This commitment letter may not be assigned by
Borrower but may be assigned, in whole or in
part, by GSMC (except that even following such
an assignment, GSMC shall remain primarily
liable to cause the Loan to be made, subject to
the terms and conditions hereof, and shall serve
as the initial Administrative Agent under the
Loan Agreement).
Subject to the conditions hereof, the Loan
Agreement and the other Loan Documents shall be
executed by the parties on the Closing Date in
the form attached hereto, with all blanks
appropriately filled in and with such other
changes as the parties shall reasonably agree
(and the terms and conditions of the form of
Cooperation Agreement attached as an exhibit to
the Loan Agreement are incorporated herein by
this reference).
4
This commitment letter and the interest rate and other terms discussed herein
and in the Loan Agreement shall be deemed withdrawn unless this commitment
letter is executed by both parties and delivered together with the Commitment
Fee, the Advisory Fee and the Expense Deposit prior to October 29, 2001.
Sincerely,
Xxxxxxx X. Xxxxxx
Managing Director
cc: Xxxx Xxxxx
Xxx Xxxxxx
Xxx Xxxxxx
Xxxxx Xxxxx
AGREED:
CALWEST INDUSTRIAL PROPERTIES, LLC XXXXXXX XXXXX MORTGAGE COMPANY
By: RREEF America, L.L.C., its Authorized Agent By: Xxxxxxx Xxxxx Real Estate
Funding Corp., its General
Partner
By: /s/ XXXXXXXXXXX XXXXXX By: /s/ XXX XXXXXX
---------------------------------- ----------------------------
Name: Xxxxxxxxxxx Xxxxxx Name: Xxx Xxxxxx
Title: Authorized Representative Title: Managing Director
5
Annex A
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In the event that GSMC, any of the Lenders, the Administrative Agent or the
Collateral Agent (each, an "Indemnified Party") becomes involved in any capacity
in any action, proceeding or investigation brought by or against any person,
including stockholders of Cabot Industrial Trust, in connection with or as a
result of the Loan, GSMC's commitment or any other matter referred to in this
commitment letter, the Borrower will promptly reimburse such Indemnified Party
for its legal and other expenses (including the cost of any investigation and
preparation) incurred in connection therewith; provided, however, that if it is
-------- -------
found in any such action, proceeding or investigation that any loss, claim,
damage, or liability of an Indemnified Party has resulted from the gross
negligence or bad faith of such Indemnified Party, such Indemnified Party will
repay such portion of the reimbursed amounts that are attributable to expenses
incurred in relation to the act or omission of such Indemnified Party that is
the subject of such finding. The Borrower also will indemnify and hold each
Indemnified Party harmless against any and all losses, claims, damages or
liabilities to any such person in connection with or as a result of either
GSMC's commitment, the Loan or any matter referred to in the commitment letter
or the Loan Agreement, except to the extent that any such loss, claim, damage or
liability results from the gross negligence or bad faith of such Indemnified
Party in performing the services that are the subject of the commitment letter.
If for any reason the foregoing indemnification is unavailable to any
Indemnified Party or insufficient to hold it harmless, then the Borrower shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative economic interests of the Borrower and its stockholders on
the one hand and such Indemnified Party on the other hand in the matters
contemplated by the commitment letter as well as the relative fault of the
Borrower on the one hand, and such Indemnified Party, on the other hand, with
respect to such loss, claim, damage or liability and any other relevant
equitable considerations. The reimbursement, indemnity and contribution
obligations of the Borrower under this paragraph shall be in addition to any
liability which the Borrower may otherwise have, shall extend upon the same
terms and conditions to any affiliate of any Indemnified Party and the partners,
directors, agents, employees and controlling persons (if any), as the case may
be, of such Indemnified Party and any such affiliate, and shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Borrower, such Indemnified Party, any such affiliate and
any such person. The Borrower also agrees that neither any Indemnified Party nor
any of such affiliates, partners, directors, agents, employees or controlling
persons shall have any liability to the Borrower, any person asserting claims on
behalf of or in right of the Borrower, or any other person in connection with or
as a result of either GSMC's commitment, the Loan or any matter referred to in
the commitment letter or the Loan Agreement except to the extent that any
losses, claims, damages, liabilities or expenses incurred by the Borrower result
from the gross negligence or bad faith of such Indemnified Party in performing
the services that are the subject of this commitment letter (including, in the
case of GSMC, a breach by it of its obligations hereunder); provided, however,
that in no event shall such Indemnified Party or such other parties have any
liability for any indirect, consequential or punitive damages in connection with
or as a result of such Indemnified Party's or such other parties' activities
related to the Loan. Any right to trial by jury with respect to any action or
proceeding arising in connection with or as a result of either this arrangement
or any matter referred to in the commitment letter is hereby waived by the
parties hereto. The provisions of this Annex A shall survive any termination or
completion of the arrangement provided by the commitment letter and the
execution of the Loan Agreement.
FORM OF LOAN AGREEMENT
LOAN AGREEMENT
Dated as of [_____], 2001
by and among
CALWEST INDUSTRIAL PROPERTIES, LLC
and
ROOSTER ACQUISITION CORP.,
as the initial Borrowers,
XXXXXXX XXXXX MORTGAGE COMPANY,
as Administrative Agent,
[_____],
as a Lender,
THE OTHER LENDERS FROM TIME TO TIME PARTIES HERETO,
and
LaSALLE BANK NATIONAL ASSOCIATION,
as Collateral Agent
CERTAIN DEFINITIONS
ARTICLE I
GENERAL TERMS
Section 1.1. The Loan ........................................... 19
Section 1.2. Extension Options .................................. 22
Section 1.3. Security for the Loan .............................. 23
Section 1.4. Borrowers' Notes ................................... 24
Section 1.5. Principal and Interest ............................. 25
Section 1.6. Voluntary Prepayment ............................... 25
Section 1.7. Mandatory Prepayment ............................... 26
Section 1.8. Application of Payments after Event of Default ..... 27
Section 1.9. Method and Place of Payment ........................ 27
Section 1.10. Taxes .............................................. 28
Section 1.11. Regulatory Change, etc. ............................ 28
Section 1.12. Unavailability, etc. ............................... 29
Section 1.13. Pro Rata Treatment ................................. 29
Section 1.14. Sharing of Payments ................................ 29
Section 1.15. Release ............................................ 30
Section 1.16. Mitigation ......................................... 30
ARTICLE II
ACCOUNTS
Section 2.1. Loss Proceeds Account .............................. 30
Section 2.2. Pledge ............................................. 31
Section 2.3. Remedies ........................................... 31
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1. Conditions Precedent to the Loan ................... 31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Merger Agreement Representations ................... 34
Section 4.2 Formation; Existence; Qualification; Power ......... 35
Section 4.3. Authorization; No Conflict; Consents and Approvals . 35
Section 4.4 Enforceability ..................................... 35
Section 4.5 Solvency ........................................... 35
Section 4.6 Use of Proceeds; Margin ............................ 36
Section 4.7 No Default or Event of Default ..................... 36
i
Section 4.8 No Material Misrepresentation ...................... 36
Section 4.9 Financial Information .............................. 36
Section 4.10 Xxxxxxx and Threatened Litigation .................. 36
Section 4.11 Compliance with Laws ............................... 36
Section 4.12. Liens .............................................. 36
Section 4.13. Material Agreements ................................ 37
Section 4.14. Taxes .............................................. 37
Section 4.15. Government Regulation .............................. 37
Section 4.16. No Bankruptcy Filing ............................... 37
Section 4.17. Other Debt ......................................... 37
Section 4.18. Condemnation ....................................... 37
Section 4.19. Utilities and Public Access ........................ 38
Section 4.20. Environmental Matters .............................. 38
Section 4.21. Assessments ........................................ 39
Section 4.22. No Joint Assessment; Separate Lots ................. 39
Section 4.23. No Prior Assignment ................................ 39
Section 4.24. Permits; Certificates of Occupancy ................. 39
Section 4.25. Physical Condition ................................. 39
Section 4.26 ERISA .............................................. 39
Section 4.27 Labor Matters ...................................... 40
Section 4.28 Operating Partnership Liability Amount ............. 40
Section 4.29 Loan Reduction Amount .............................. 40
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.1. Trust Merger ....................................... 40
Section 5.2. Existence; Compliance with Legal Requirements;
Insurance; Certain Notices ........................ 40
Section 5.3. Impositions and Other Claims ....................... 40
Section 5.4. Impositions and Other Claims; Litigation ........... 41
Section 5.5. General Indemnity .................................. 41
Section 5.6. Access to Property ................................. 41
Section 5.7. Notice of Default .................................. 41
Section 5.8. Cooperate in Legal Proceedings ..................... 41
Section 5.9. Perform Loan Documents ............................. 42
Section 5.10. Insurance Benefits ................................ 42
Section 5.11. Further Assurances ................................. 42
Section 5.12. Financial Reporting ................................ 42
Section 5.13. [Intentionally Omitted] ............................ 43
Section 5.14. Conduct of Business ................................ 43
Section 5.15. Assignment or Participation of Notes ............... 43
Section 5.16. Insurance .......................................... 43
Section 5.17. Casualty and Condemnation .......................... 46
Section 5.18. ERISA .............................................. 48
ii
ARTICLE VI
NEGATIVE COVENANTS
Section 6.1. Liens on the Properties ............................ 48
Section 6.2. Ownership and Transfer ............................. 48
Section 6.3. Debt ............................................... 48
Section 6.4. Dissolution; Merger or Consolidation ............... 48
Section 6.5. Change in Business ................................. 48
Section 6.6. Debt Cancellation .................................. 48
Section 6.7. Affiliate Transactions ............................. 48
Section 6.8. Misapplication of Funds. ........................... 48
Section 6.9. ERISA .............................................. 49
Section 6.10. Advances and Investments ........................... 49
Section 6.11. New Subsidiaries ................................... 49
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1. Event of Default ................................... 49
Section 7.2. Remedies ........................................... 51
Section 7.3. Remedies Cumulative ................................ 52
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Survival ........................................... 52
Section 8.2. Syndication Agent's and Xxxxxxx' Discretion ........ 53
Section 8.3. GOVERNING LAW ...................................... 53
Section 8.4. Modification; Waiver in Writing .................... 53
Section 8.5. Delay Not a Waiver ................................. 54
Section 8.6. Notices ............................................ 54
Section 8.7. TRIAL BY JURY ...................................... 55
Section 8.8. Headings ........................................... 55
Section 8.9. Assignment and Participation ....................... 55
Section 8.10. Severability ....................................... 55
Section 8.11. Preferences ........................................ 55
Section 8.12. Waiver of Notice ................................... 56
Section 8.13. Remedies of Borrower ............................... 56
Section 8.14. Exhibits and Schedules Incorporated ................ 56
Section 8.15. Offsets, Counterclaims and Defenses ................ 56
Section 8.16. No Joint Venture ................................... 57
Section 8.17. Waiver of Marshalling of Assets Defense ............ 57
Section 8.18. [Intentionally Omitted] ............................ 57
Section 8.19. Conflict; Construction of Documents ................ 57
iii
Section 8.20. Brokers and Financial Advisors ..................... 57
Section 8.21. Counterparts ....................................... 57
Section 8.22. Estoppel Certificates .............................. 57
Section 8.23. Payment of Expenses; Mortgage Recording Taxes ...... 58
Section 8.24. Right of Set-off ................................... 58
Section 8.25. Exculpation of Syndication Agent and Lenders ....... 58
ARTICLE IX
AGENTS
Section 9.1. Appointment and Authorization of Collateral Agent
and Syndication Agent .............................. 59
Section 9.2. Delegation of Duties ............................... 59
Section 9.3. Liability of Agents ................................ 59
Section 9.4. Reliance by Agents ................................. 60
Section 9.5. Notice of Default .................................. 60
Section 9.6. Credit Decision .................................... 60
Section 9.7. Indemnification .................................... 61
Section 9.8. Agent in Individual Capacity ....................... 62
Section 9.9. Successor Agents ................................... 62
Section 9.10. Standard of Care of the Collateral Agent ........... 63
Exhibits
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Exhibit A Form of Note
Exhibit B Form of Acquisition Vehicle Pledge Agreement
Exhibit C Form of Calwest Pledge Agreement
Exhibit D Form of Parent Pledge Agreement
Exhibit E Form of Omnibus Subsidiary Guarantee
Exhibit F Form of Assumption Agreement
Exhibit G Form of Cooperation Agreement
Exhibit H Form of Environmental Indemnity
Exhibit I Form of Calwest Guarantee
Schedules
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Schedule 1 Properties
Schedule 2 Preferred Equity
Schedule 3 Existing Debt
Schedule 4 Existing Liens
Schedule 5 Operating Partnership Financing Documents
Schedule 6 Restricted Subsidiaries
Schedule 7 Conflicts with Agreements
iv
LOAN AGREEMENT
THIS LOAN AGREEMENT is dated as of [_____], 2001 and is
entered into by and among [_____], a [_____] having an address at [_____], as a
Lender, Calwest Industrial Properties LLC, a California limited liability
company having an address at 000 Xxxxxxxxxx Xxxxxx, 00/xx/ xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000-5853 ("Calwest"), Rooster Acquisition Corp., a Maryland
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corporation having an address at 000 Xxxxxxxxxx Xxxxxx, 00/xx/ xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000-5853 ("Acquisition Vehicle" and, collectively with
-------------------
Calwest and their respective permitted successors and assigns, the initial
Borrowers), Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership
having an address at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
Administrative Agent (together with its successors and assigns in such capacity,
the "Administrative Agent"), LaSalle Bank National Association, a national
--------------------
banking association having an address at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, as collateral agent for the benefit of the Lenders (as
such collateral agent may be changed from time to time in accordance with the
provisions of this Agreement, the "Collateral Agent"), and the other Lenders
----------------
from time to time party hereto.
RECITALS
The Borrowers desire to obtain from the Lenders the Loan (as
hereinafter defined).
The Lenders are willing to make the Loan on the terms and
conditions hereof if the Borrowers join in the execution and delivery of this
Agreement, the Notes and the other Loan Documents which shall establish the
terms and conditions of the Loan.
The parties hereby covenant, agree, represent and warrant as
follows:
DEFINITIONS
-----------
For all purposes of this Agreement: (1) defined terms include
the plural as well as the singular; (2) all accounting terms have the meanings
assigned to them in accordance with GAAP (as in effect from time to time) except
as otherwise provided; (3) the words "herein", "hereof", and "hereunder" and
other words of similar import refer to this Agreement as a whole and not to any
particular Article, Section, or other subdivision; and (4) the following terms
have the following meanings:
"Accepted Practices" means such practices as commercial
------------------
mortgage collateral agents would follow in the normal course of their business
in performing administrative and custodial duties with respect to collateral
which is generally similar to the Collateral; provided, however, that "Accepted
-------- ------- --------
Practices" shall not be deemed to include any custodial practices now followed
---------
by the Collateral Agent for any such collateral held for its own account to the
extent that such practices are more stringent than the practices followed by
commercial collateral agents generally.
1
"Acquisition Vehicle Pledge Agreement" means the Pledge
------------------------------------
Agreement, dated as of the date hereof, between the Acquisition Vehicle, as
pledgor, and the Collateral Agent, as pledgee for the benefit of the Lenders,
the form of which is attached hereto as Exhibit B, as such agreement may be
---------
amended, modified or supplemented from time to time.
"Additional Advances" means, collectively, the Operating
-------------------
Partnership Advance, if any, and the Additional Calwest Advance, if any.
"Additional Calwest Advance" has the meaning set forth in
--------------------------
Section 1.1(c).
-------------
"Additional Calwest Advance Amount" means (x) the Maximum Loan
---------------------------------
Amount minus (y) the sum of the Closing Date Advance Amount and the Operating
Partnership Advance Amount (but in no event shall the Additional Calwest Advance
Amount be less than zero).
"Administrative Agent" has the meaning set forth in the first
--------------------
paragraph hereof.
"Advance" has the meaning provided in Section 1.2.
------- -----------
"Affiliate" of any specified Person means any other Person
---------
controlling or controlled by or under 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 interests, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agents" means, collectively, the Administrative Agent and the
------
Collateral Agent.
"Agreement" means this Loan Agreement, as the same may from
---------
time to time be modified, supplemented or amended.
"Applicable Spread" means (i) with respect to any Interest
-----------------
Accrual Period commencing prior to the commencement of the third Extension Term,
1.25%, and (ii) with respect to each Interest Accrual Period thereafter, 2.25%.
"Assignment" has the meaning provided in Section 5.15.
---------- ------------
"Assumption Agreement" has the meaning set forth in Section
-------------------- -------
1.1(c)(iii).
----------
"beneficial" when used in the context of beneficial ownership
----------
has the analogous meaning to that specified in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended.
"Borrowers" means (i) prior to the date of the Operating
---------
Partnership Advance, Calwest and the Acquisition Vehicle, and (ii) from and
after the date of the Operating Partnership Advance, Calwest, the Trust and the
Operating Partnership (provided that if and when the Notes issued by the Trust
--------
and the Operating Partnership are repaid in full, the Trust and the Operating
Partnership shall cease to be Borrowers and shall instead be Restricted
Subsidiaries).
2
"Breakage Costs" means, with respect to a prepayment (with the
--------------
required notice) on any date other than a Payment Date, an amount equal to the
excess, if any, of (i) the amount of interest that otherwise would have accrued
hereunder on the principal amount so prepaid for the period from the date of
such prepayment through the last day of the then-current Interest Accrual Period
(or, in the case of a prepayment on the Payment Date immediately following the
termination of the applicable Interest Accrual Period without the required
notice, the period from such Payment Date through the end of the Interest
Accrual Period which commences on such Payment Date) at the applicable interest
rate set forth herein, over (ii) the amount of interest that otherwise would
have accrued on such principal amount for such period at a rate per annum equal
to LIBOR measured two Business Days prior to such prepayment.
"Business Day" means any day other than (i) a Saturday and a
------------
Sunday and (ii) a day on which federally insured depository institutions in the
State of New York or the state in which the offices of the Collateral Agent are
authorized or obligated by law, governmental decree or executive order to be
closed. When used with respect to an Interest Determination Date, "Business Day"
------------
shall mean a day on which banks are open for dealing in foreign currency and
exchange in London.
"CALPERS" means the State of California Public Employees'
-------
Retirement System, a unit of the State and Consumer Services Agency of the State
of California.
"Calwest Guarantee" means a guarantee by Calwest of the
-----------------
obligations of the Operating Partnership under the Notes issued by it at the
time of the Operating Partnership Advance, the form of which is attached hereto
as Exhibit I, as such agreement may be amended, modified or supplemented from
---------
time to time.
"Calwest Pledge Agreement" means the Pledge Agreement, dated
------------------------
as of the date hereof, between Calwest, as pledgor, and the Collateral Agent, as
pledgee for the benefit of the Lenders, the form of which is attached hereto as
Exhibit C, as such agreement may be amended, modified or supplemented from time
---------
to time.
"Casualty" means a fire, explosion, flood, collapse or other
--------
casualty affecting any of the Properties.
"Change of Control" means the sale or transfer, in one or more
-----------------
transactions, of any direct or indirect beneficial ownership interest in any
Borrower or any of the Restricted Subsidiaries.
"Closing" means the consummation of the Transaction on the
-------
Closing Date.
"Closing Date" means the date on which the Closing Date
------------
Advance Amount is funded in accordance herewith.
"Closing Date Advance Amount" means the lesser of (x) the
---------------------------
Maximum Loan Amount and (y) the acquisition cost of shares of the Trust acquired
by the Acquisition Vehicle on the closing date for the tender of shares in
accordance with the Merger Agreement (i.e., the cash purchase price plus all
----
reasonable out-of-pocket transaction costs incurred by the Borrowers) minus
-----
$130,000,000 and minus any Excess Calwest Debt.
-----
3
"Code" means the Internal Revenue Code of 1986, as amended,
----
and as it may be further amended from time to time, any successor statutes
thereto, and applicable U.S. Department of Treasury regulations issued pursuant
thereto in temporary or final form.
"Collateral" means, collectively, (i) the "Collateral" under
----------
and as defined in the Calwest Pledge Agreement, the Acquisition Vehicle Pledge
Agreement, the Omnibus Subsidiary Guarantee and the Parent Pledge Agreement, and
(ii) all other tangible and intangible property in respect of which the
Collateral Agent is granted a security interest or pledge under the Loan
Documents.
"Collateral Agent" has the meaning provided in the first
----------------
paragraph of this Agreement.
"Commitment Date" means October 26, 2001, the date as of which
---------------
Xxxxxxx Xxxxx Mortgage Company executed and delivered the commitment letter
which contemplated the making of the Loan in accordance with this Loan
Agreement.
"Commitment Percentage" means, for each Lender, the percentage
---------------------
identified as such in the signature pages hereto, as such percentage may be
modified by assignment in accordance with the provisions of this Agreement.
"Condemnation Proceeds" means, in the event of a Taking with
---------------------
respect to any Property, the cash proceeds received by any Borrower or any
Restricted Subsidiary in respect of such Taking.
"Contingent Obligation" of any Person means any obligation of
---------------------
such Person directly or indirectly guaranteeing any Debt of any other Person in
any manner and any contingent obligation to purchase, to provide funds for
payment, to supply funds to invest in any other Person or otherwise to assure a
creditor against loss.
"Cooperation Agreement" shall mean that certain Cooperation
---------------------
Agreement, dated as of the date hereof, between the Borrowers and the Lenders,
the form of which is attached hereto as Exhibit G, as the same may be amended,
---------
supplemented or otherwise modified from time to time.
"Debt" means, with respect to any Person, without duplication:
----
(i) all indebtedness of such Person to any other party
(regardless of whether such indebtedness is evidenced by a written
instrument such as a note, bond or debenture), including indebtedness
for borrowed money or for the deferred purchase price of property or
services;
(ii) all letters of credit issued for the account of such
Person and all unreimbursed amounts drawn thereunder;
(iii) all indebtedness secured by a Lien on any property owned
by such Person (whether or not such indebtedness has been assumed)
except obligations for impositions which are not yet due and payable;
4
(iv) all Contingent Obligations of such Person;
(v) all payment obligations of such Person under any
interest rate protection agreement (including any interest rate swaps,
floors, collars or similar agreements) and similar agreements;
(vi) all contractual indemnity obligations of such Person;
(vii) all preferred equity issued by such Person, other than
preferred equity in existence on the Commitment Date and described in
Schedule 2; and
----------
(viii) any material actual or contingent liability to any
Person or Governmental Authority with respect to any employee benefit
plan (within the meaning of Section 3(3) of ERISA) subject to Title IV
of ERISA, Section 302 of ERISA or Section 412 of the Code.
"Default" means the occurrence of any event which, but for the
-------
giving of notice or the passage of time, or both, would be an Event of Default.
"Default Rate" means the per annum interest rate equal to the
------------
greater of (i) 5% per annum in excess of the Interest Rate otherwise applicable
hereunder, and (ii) 3% per annum in excess of the Prime Rate.
"Environmental Claim" means any written notification, claim,
-------------------
administrative, regulatory or judicial action, suit, judgment or demand by any
Person or Governmental Authority alleging or asserting liability with respect to
any Borrower or Restricted Subsidiary or any Property (whether for damages,
contribution, indemnification, cost recovery, compensation, injunctive relief,
investigatory, response, remedial or cleanup costs, damages to natural
resources, personal injuries, fines or penalties) arising out of, based on or
resulting from (i) the presence, Use or Release into the environment of any
Hazardous Substance at any location (whether or not owned, managed or operated
by any Borrower or Restricted Subsidiary), (ii) any fact, circumstance,
condition or occurrence forming the basis of any violation, or alleged
violation, of any Environmental Law or (iii) any alleged injury or threat of
injury to health or safety or to the environment caused by Hazardous Substances.
"Environmental Indemnity" shall mean an environmental
-----------------------
indemnity agreement in favor of the Lenders, the form of which is attached
hereto as Exhibit H, as the same may be amended, supplemented or otherwise
---------
modified from time to time.
"Environmental Laws" means any and all present and future
------------------
federal, state or local laws, statutes, ordinances or regulations, any judicial
or administrative orders, decrees or judgments thereunder, and any permits,
approvals, licenses, registrations, filings and authorizations, in each case as
now or hereafter in effect, relating to the protection of the environment, the
impact of Hazardous Substances (including, without limitation, the Use, disposal
or remediation thereof) on human health or safety, or the Release or threatened
Release of Hazardous Substances or otherwise relating to the Use of Hazardous
Substances.
5
"ERISA" means the Employee Retirement Income Security Act of
-----
1974, as amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate," at any time, means each trade or business
---------------
(whether or not incorporated) that would, at the time, be treated together with
any Borrower or Restricted Subsidiary, the Trust or the Operating Partnership as
a single employer under Title IV or Section 302 of ERISA or Section 412 of the
Code, it being understood that CALPERS shall not be deemed an "ERISA Affiliate."
"Event of Default" has the meaning set forth in Section 7.1.
---------------- -----------
"Excess Calwest Debt" at any time means the amount, if any, by
-------------------
which the outstanding Debt of Calwest, the Acquisition Vehicle and their
respective Subsidiaries (other than the Trust, the Operating Partnership and its
Subsidiaries) for borrowed money (excluding the Loan), plus, if any of such
Borrowers and Subsidiaries is a party to the Revolving Credit Agreement, any
Revolving Credit Availability, exceeds $125 million.
"Excess Operating Partnership Debt" at any time means the
---------------------------------
amount, if any, by which the outstanding Debt of the Trust, the Operating
Partnership and its Restricted Subsidiaries for borrowed money, plus, if any of
the Operating Partnership and its Restricted Subsidiaries is a party to the
Revolving Credit Agreement, any Revolving Credit Availability, exceeds $500
million (for purposes of this definition, (A) any preferred equity shall be
regarded as equity and not as Debt, and (B) there shall be disregarded up to $25
million of debt of the Unrestricted Joint Ventures that is guaranteed by the
Trust).
"Excess Preferred Equity" at any time means the amount, if
-----------------------
any, by which the aggregate outstanding amount of preferred equity in the Trust
and in the Operating Partnership exceeds $240 million.
"Existing Revolving Credit Agreement" means the Revolving
-----------------------------------
Credit Agreement, dated as of October 24, 2000, among the Operating Partnership,
as Borrower, Xxxxxx Guaranty Trust Company of New York, as Bank and as Lead
Agent for the Banks, The Chase Manhattan Bank, as Syndication Agent, Fleet
National Bank, as Documentation Agent and the Banks parties thereto, as amended
from time to time with the written consent of the Administrative Agent.
"Extension Fee" applicable to each of the first, second, third
-------------
and fourth Extension Terms means, in each case, an amount equal to the product
of (x) the outstanding principal balance of the Loan on the applicable Extension
Date, multiplied by (y) 0.25%.
"Extension Date" has the meaning set forth in Section 1.2.
-------------- -----------
"Extension Term" has the meaning set forth in Section 1.2.
-------------- -----------
"Federal Funds Rate" means, for any period, the rate set forth
------------------
in the weekly statistical release designated as H.15 (519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)"), for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet published in H.15
(519), the rate for such day will be the rate set forth in the daily statistical
release
6
designated as the Composite 3:30 p.m. Quotations for U.S. Government Securities,
or any successor publication, published by the Federal Reserve Bank of New York
(including any such successor, the "Composite 3:30 p.m. Quotation") for such day
under the caption "Federal Funds Effective Rate". If on any relevant day the
appropriate rate for such day is not yet published in either H.15(519) or the
Composite 3:30 p.m. Quotations, the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York time) on that day by each of three leading brokers
of federal funds transactions in New York City selected by the Administrative
Agent.
"FF&E" means furniture, fixtures and equipment now owned or hereafter
----
acquired by any Borrower or Restricted Subsidiary which are located on any of
the Properties and all proceeds thereof.
"Financial Information" means the financial statements and other
---------------------
material financial information provided by the Borrowers to the Lender in
connection with its underwriting of the Loan.
"Fitch" means Fitch, Inc. and its successors.
-----
"Form W-8BEN" means Form W-8BEN (Certificate of Foreign Status of
-----------
Beneficial Owner for United States Tax Withholding) of the Department of
Treasury of the United States of America, and any successor form.
"Form W-8ECI" means Form W-8ECI (Certificate of Foreign Person's Claim
-----------
for Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America, and any successor form.
"GAAP" means generally accepted accounting principles in the United
----
States of America as of the date of the applicable financial report.
"Governmental Authority" means any national or federal government, any
----------------------
state, regional, local or other political subdivision thereof with jurisdiction
and any Person with jurisdiction exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government
(including, without limitation, any court).
"Hazardous Substance" means, collectively, (i) any petroleum or
-------------------
petroleum products or waste oils, explosives, radioactive materials, asbestos,
urea formaldehyde foam insulation, polychlorinated biphenyls ("PCBs"), and
----
lead-based paint, (ii) any chemicals or other materials or substances which are
now or hereafter become defined as or included in the definitions of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants", "pollutants" or words of similar import under any Environmental
Law and (iii) any other chemical or other material or substance, exposure to
which is now or hereafter prohibited, limited or regulated under any
Environmental Law.
"Impositions" means all taxes (including, without limitation, all real
-----------
estate, ad valorem, sales (including those imposed on lease rentals), use,
single business, gross receipts,
7
value added, intangible transaction privilege, privilege or license or similar
taxes), assessments of Governmental Authorities (including, without limitation,
all assessments for public improvements or benefits, whether or not commenced or
completed within the term of the Loan), ground rents, water, sewer or other
rents and charges, excises, levies, fees (including, without limitation,
license, permit, inspection, authorization and similar fees), and all other
governmental impositions and other charges (including, without limitation, vault
charges and license fees for the use of vaults, chutes and similar areas), in
each case whether general or special, ordinary or extraordinary, foreseen or
unforeseen, of every character, which at any time prior to, during or in respect
of the term of the Loan may be payable by any Borrower or Restricted Subsidiary
or be a lien upon (i) any property of Borrower or Restricted Subsidiary or the
Administrative Agent or any of the Lenders, or (ii) any Collateral.
"Improvements" means all buildings, structures and improvements of
------------
every nature whatsoever owned by any Borrower or Restricted Subsidiary,
including any additions, enlargements, extensions, modifications, repairs or
replacements thereto.
"Increased Costs" has the meaning set forth in Section 1.11(b).
--------------- ---------------
"Indebtedness" means the Principal Indebtedness, together with all
------------
other obligations and liabilities due or to become due to the Lenders or the
Administrative Agent pursuant hereto, in all cases arising under the Notes or
under or in accordance with any of the other Loan Documents, and all other
amounts, sums and expenses payable or reimbursable by the Borrowers to the
Lenders, the Administrative Agent or the Collateral Agent in all cases arising
hereunder or pursuant to the Notes or any of the other Loan Documents.
"Indemnified Parties" has the meaning set forth in Section 5.5.
------------------- -----------
"Initial Payment Date" means the Payment Date in [February] 2002.
--------------------
"Insurance Proceeds" means, in the event of a Casualty, the proceeds
------------------
received by any Borrower or Restricted Subsidiary under any insurance policy in
respect thereof.
"Insurance Requirements" means, collectively, all material terms of
----------------------
all insurance policies required to be maintained by the Borrowers and the
Restricted Subsidiaries pursuant to this Agreement.
"Interest" means any and all interest accrued or payable on the Loan
--------
(whether at the Interest Rate or the Default Rate).
"Interest Accrual Period" means, in connection with any specified
-----------------------
Payment Date, the period from and including the preceding Payment Date to but
excluding such specified Payment Date; provided, however, that the first
-------- -------
Interest Accrual Period with respect to the Closing Date Advance Amount shall
commence on the Closing Date and the first Interest Accrual Period with respect
to the Additional Advances shall commence on the date on which the Additional
Advances are made.
"Interest Determination Date" means, with respect to any Interest
---------------------------
Accrual Period, the second Business Day preceding the first day of such Interest
Accrual Period.
8
"Interest Rate" has the meaning specified in Section 1.5(a).
------------- --------------
"Lease" means any lease, license, letting, concession, occupancy
-----
agreement, sublease to which a Borrower or a Restricted Subsidiary is a party or
has a consent right, or other agreement (whether written or oral and whether now
or hereafter in effect) to which a Borrower or a Restricted Subsidiary is a
lessor, existing as of the Closing Date or hereafter entered into, in each case
pursuant to which any Person is granted a possessory interest in, or right to
use or occupy all or any portion of any space in any Property, and every
modification or amendment thereof, and every guarantee of the performance and
observance of the covenants, conditions and agreements to be performed and
observed by the other party thereto.
"Legal Requirements" means (i) all governmental statutes, laws, rules,
------------------
orders, regulations, ordinances, judgments, decrees and injunctions of
Governmental Authorities affecting the Borrowers, any Restricted Subsidiary or
any Property or any part thereof or the construction, ownership, use, alteration
or operation thereof, or any part thereof (whether now or hereafter enacted or
issued and in force), (ii) all Permits and regulations relating thereto, and
(iii) all covenants, conditions and restrictions contained in any material
instruments at any time in force (whether or not involving Governmental
Authorities) affecting any material portion of any Property which, in the case
of this clause (iii), require repairs, modifications or alterations in or to
such Property, or in any material way limit or restrict the existing use and
enjoyment thereof.
"Lenders" means, collectively, the holders from time to time of the
-------
Notes.
"LIBOR" means the rate per annum calculated as set forth below:
-----
(i) On each Interest Determination Date, LIBOR for the next Interest
Accrual Period will be the rate for deposits in United States dollars for a
period of one month which appears on Telerate Page 3750 as of 11:00 a.m., London
time, on such date.
(ii) With respect to an Interest Determination Date on which no such
rate appears on Telerate Page 3750 as described above, LIBOR for the next
Interest Accrual Period will be determined on the basis of the rates at which
deposits in United States dollars are offered by the Reference Banks at
approximately 11:00 a.m., London time, on such date to prime banks in the London
interbank market for a period of one month. The Administrative Agent shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, LIBOR for
such Interest Accrual Period will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR for such Interest Accrual Period
will be the arithmetic mean of the rates quoted by major banks in New York City,
selected by the Administrative Agent in its reasonable discretion, at
approximately 11:00 a.m., New York City time, on such date for loans in United
States dollars to leading European banks for a period of one month.
(iii) If on any Interest Determination Date the Lender is required but
unable to determine LIBOR in the manner provided in paragraphs (i) or (ii)
above, LIBOR for the next Interest Accrual Period shall be LIBOR as determined
on the previous Interest Determination Date.
9
All percentages resulting from any calculations referred to in this definition
will be rounded upwards to the nearest multiple of 1/100 of 1% and all U.S.
dollar amounts used in or resulting from such calculations will be rounded to
the nearest cent (with one-half cent or more being rounded upwards).
"Lien" means any mortgage, deed of trust, lien (statutory or other),
----
pledge, hypothecation, assignment, preference, priority, security interest, or
any other encumbrance or charge on or affecting any Property or other asset of
any Borrower or Restricted Subsidiary, or any portion thereof, or any interest
therein (including, without limitation, any conditional sale or other title
retention agreement, any sale-leaseback, any financing lease having
substantially the same economic effect as any of the foregoing, the filing of
any financing statement or similar instrument under the UCC or comparable law of
any other jurisdiction, domestic or foreign, and mechanic's, materialmen's and
other similar liens and encumbrances), except for the filing of financing
statements in connection with obligations under equipment leases not required to
be capitalized under GAAP to the extent such financing statements relate solely
to the property subject to such lease obligation.
"Liquidation Expenses" means, in connection with the Transfer of a
--------------------
Property, reasonable fees and expenses actually incurred in connection
therewith, not to exceed 4% of the Liquidation Proceeds in respect of which such
Liquidation Expenses are incurred, plus the amount of any Permitted Debt repaid
to third parties to release Permitted Liens on such Property; provided that if a
--------
Property is the subject of a Transfer that is not a third-party arms'-length
sale, then "Liquidation Expenses" shall mean zero.
"Liquidation Proceeds" means the aggregate amount received in
--------------------
connection with a Transfer of any Property (including the value of any non-cash
consideration received, as reasonably determined by the Administrative Agent);
provided that if a Property is the subject of a Transfer that is not a
--------
third-party arms'-length sale, then "Liquidation Proceeds" shall mean the fair
market value of such Property, as reasonably determined by the Administrative
Agent, unless the Property is the subject of a Transfer to a Subsidiary of
Calwest in connection with a refinancing of a portion of the Loan by Xxxxxxx
Xxxxx Mortgage Company or any of its Affiliates (as principal or as agent), in
which case "Liquidation Proceeds" shall mean the net proceeds of such
refinancing; and provided further that if a Property is the subject of a
-------- -------
Transfer between the Borrowers and/or any of the Restricted Subsidiaries (other
than a Transfer to the Trust, the Operating Partnership or any of its
Subsidiaries), then the Liquidation Proceeds in connection with such Transfer
shall be deemed to be zero.
"Loan" has the meaning set forth in Section 1.1.
---- -----------
"Loan Documents" means this Agreement, the Notes, the Calwest Pledge
--------------
Agreement, the Acquisition Vehicle Pledge Agreement, the Omnibus Subsidiary
Guarantee, the Calwest Guarantee, the Parent Pledge Agreement, the Environmental
Indemnity, the Cooperation Agreement, the Solvency Certificate, the Assumption
Agreement, the Loan Reduction Amount Certifications and all other agreements,
instruments and certificates delivered by or on behalf of any Borrower or an
Affiliate thereof to evidence or secure the Loan or otherwise in satisfaction of
the requirements or conditions of this Agreement or the other documents listed
above, and any
10
other document executed by Xxxxxxx and the Administrative Agent that identifies
itself as a Loan Document, as all of the aforesaid may be amended, modified or
supplemented from time to time.
"Loan Reduction Amount" means, at the time that any portion of the
---------------------
Loan is to be funded, the sum of (i) any Excess Calwest Debt plus (ii) any
----
Excess Operating Partnership Debt, plus (iii) any Excess Preferred Equity
(provided that if any Debt simultaneously constitutes Excess Calwest Debt and
--------
Excess Operating Partnership Debt, such Debt shall not be double counted in
making such calculation).
"Loan Reduction Amount Certification" means a certificate specifying
-----------------------------------
the amount of the Loan Reduction Amount and the components thereof, certified as
true and correct by the Borrowers.
"Loss Proceeds" means Condemnation Proceeds and/or Insurance Proceeds.
-------------
"Loss Proceeds Account" has the meaning specified in Section 2.1.
--------------------- -----------
"Material Adverse Effect" means either (i) a material adverse effect
-----------------------
upon the business operations, properties, assets or condition (financial or
otherwise) of the Borrowers and the Restricted Subsidiaries, taken as a whole,
or (ii) a material adverse effect upon the ability of the Borrowers and/or
Restricted Subsidiaries to perform, or of the Collateral Agent, the
Administrative Agent or the Lenders to enforce, any material provision of any
Loan Document.
"Maturity Date" means the Payment Date that is closest to the
-------------
six-month anniversary of the Closing Date, as such Maturity Date may be extended
in accordance with Section 1.2.
-----------
"Maximum Loan Amount" means (x) $1,225,000,000 minus (y) the Loan
-------------------
Reduction Amount.
"Maximum Revolving Credit Loan Amount" at any time means (x) the
------------------------------------
outstanding principal balance of the Revolving Credit Loans on the Closing Date
(or, if the Revolving Credit Agreement is entered into after the Closing Date
with the consent of the Administrative Agent, the maximum availability
thereunder), minus (y) the sum of the aggregate amounts theretofore required to
-----
be applied toward the reduction of the outstanding principal balance of the
Revolving Credit Loans in connection with the Transfer of Properties in
accordance with Section 1.7.
-----------
"Members" means CALPERS and ROCAL, L.L.C., a Delaware limited
-------
liability company.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
----------------
October [26], 2001, among the Borrowers, the Trust and the Operating
Partnership.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
-------
11
"Net Liquidation Proceeds" means, with respect to any Property that
------------------------
has been the subject of a Transfer, the excess of (x) Liquidation Proceeds
received in connection with such Transfer over (y) Liquidation Expenses incurred
with respect thereto.
"Notes" means, collectively, (x) the promissory notes made by Calwest
-----
and the Acquisition Vehicle to the order of the Lenders as of the Closing Date
(which shall be substantially in the form of Exhibit A), and (y) the promissory
---------
notes made by the Operating Partnership and the Successor Trust to the order of
the Lenders on the date of the Operating Partnership Advance, in each case as
each such note may be assigned (in whole or in part) and/or replaced from time
to time in accordance herewith; and "Note" means one of the Notes.
----
"Obsolete FF&E" means any FF&E of any Borrower or Restricted
-------------
Subsidiary which is obsolete, outdated or worn out or the useful life of which
has ended, in each case in the good faith determination of such Borrower or
Restricted Subsidiary.
"Officer's Certificate" means a certificate delivered by the Borrowers
---------------------
to the Administrative Agent, which is signed by an authorized officer of each of
the Borrowers.
"Omnibus Subsidiary Guarantee" means the Omnibus Subsidiary Guarantee,
----------------------------
dated as of the date hereof, executed by each of the Restricted Subsidiaries in
favor of the Collateral Agent for the benefit of the Lenders, in the form
attached hereto as Exhibit E, as the same may be amended, modified or
---------
supplemented from time to time.
"Operating Partnership" means Cabot Industrial Properties, L.P.
---------------------
"Operating Partnership Advance" has the meaning set forth in Section
----------------------------- -------
1.1(c).
------
"Operating Partnership Advance Amount" means $500 million minus the
------------------------------------ -----
Excess Operating Partnership Debt.
"Operating Partnership Liability Amount " means, from time to time,
--------------------------------------
the outstanding principal balance of the Notes issued by the Operating
Partnership hereunder.
"Parent Pledge Agreement" means the Pledge Agreement, dated as of the
-----------------------
date hereof by the Members, as pledgors, in favor of the Collateral Agent, as
pledgee for the benefit of the Lenders, the form of which is attached hereto as
Exhibit D, as such agreement may from time to time be amended, modified or
---------
supplemented.
"Participation" has the meaning provided in Section 5.15.
------------- ------------
"Payment Date" means the tenth day of each month (or, if such tenth
------------
day is not a Business Day, the first Business Day immediately preceding such
tenth day).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Permits" means all licenses, permits, variances and certificates used
-------
in connection with the ownership, operation, improvement, use, management or
occupancy of any
12
Property (including, without limitation, business licenses, state health
department licenses, licenses to conduct business and all such other permits,
licenses and rights, obtained from any Governmental Authority or private Person
concerning ownership, improvement, operation, use or occupancy of such
Property).
"Permitted Debt" means:
--------------
(i) the Indebtedness;
(ii) ordinary and customary trade payables which are not evidenced by
a note and are not more than 60 days outstanding, or which are being
contested in good faith and with respect to which adequate reserves are
established in accordance with GAAP; and
(iii) the Revolving Credit Loans, and the other Debt described in
Schedule 3 existing on the Commitment Date (without increase or other
modification adverse to the rights of the Agents and the Lenders without
the consent of the Administrative Agent in its sole discretion); provided,
--------
however, that Permitted Debt shall not include (a) any draws under the
-------
Revolving Credit Agreement during the continuance of an Event of Default
hereunder or (b) any amount by which the Debt outstanding under the
Revolving Credit Agreement at any time exceeds the Maximum Revolving Credit
Loan Amount.
"Permitted Investments" means the following, subject to the
---------------------
qualifications hereinafter set forth:
(i) obligations of, or obligations guaranteed as to principal and
interest by, the U.S. government or any agency or instrumentality thereof,
when such obligations are backed by the full faith and credit of the United
States of America;
(ii) federal funds, unsecured certificates of deposit, time deposits,
banker's acceptances, and repurchase agreements having maturities of not
more than 365 days of any bank, the short-term debt obligations of which
are rated A-1+ (or the equivalent) by each of the Rating Agencies;
(iii) deposits that are fully insured by the Federal Deposit Insurance
Corp. (FDIC);
(iv) debt obligations that are rated AAA or higher (or the
equivalent) by each of the Rating Agencies;
(v) commercial paper rated A-1+ (or the equivalent) by each of the
Rating Agencies;
(vi) investment in money market funds rated AAAm or AAAm-G (or the
equivalent) by each of the Rating Agencies; and
13
(vii) such other investments as to which Lender shall have received
Rating Confirmation.
Notwithstanding the foregoing, "Permitted Investments" (i) shall
exclude any security with the Standard & Poor's "r" symbol (or any other Rating
Agency's corresponding symbol) attached to the rating (indicating high
volatility or dramatic fluctuations in their expected returns because of market
risk), as well as any mortgage-backed securities and any security of the type
commonly known as "strips"; (ii) shall not have maturities in excess of one
year; (iii) shall be limited to those instruments that have a predetermined
fixed dollar of principal due at maturity that cannot vary or change; and (iv)
shall exclude any investment where the right to receive principal and interest
derived from the underlying investment provide a yield to maturity in excess of
120% of the yield to maturity at par of such underlying investment. Interest may
either be fixed or variable, and any variable interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index. No investment shall be made which requires a
payment above par for an obligation if the obligation may be prepaid at the
option of the issuer thereof prior to its maturity. All investments shall mature
or be redeemable upon the option of the holder thereof on or prior to the
earlier of (x) three months from the date of their purchase or (y) the Business
Day preceding the day before the date such amounts are required to be applied
hereunder.
"Permitted Liens" means, collectively:
---------------
(i) the Liens created by the Loan Documents;
(ii) mechanic's, materialmen's or similar Liens, and Liens for
delinquent taxes or impositions, and judgment liens, if any, in each case
only if being contested in good faith and by appropriate proceedings,
provided that (a) no such Lien is being foreclosed, and (b) each such Lien
is released or discharged of record within 60 days of its filing (or the
Borrowers deposit with the Collateral Agent for the benefit of the Lenders,
by the expiration of such 60-day period, an amount equal to the 125% of the
amount of such Lien or a bond in the aforementioned amount from such
surety, and upon such terms and conditions, as shall be reasonably
satisfactory to the Administrative Agent as security for the payment or
release of such lien);
(iii) Liens for Taxes not yet delinquent;
(iv) rights of existing and future tenants and residents as tenants
only pursuant to written leases entered into in conformity with the
provisions of this Agreement;
(v) zoning restrictions, all building codes and other laws,
ordinances, regulations, rules, orders or determinations of any federal,
state, county, municipal or other Governmental Authority now or hereafter
enacted, easements, rights-of-way, restrictions on use of real property and
other similar encumbrances incurred or entered into in the ordinary course
of business which restrictions or encumbrances do not have a Material
Adverse Effect;
14
(vi) Liens in existence on the date hereof listed on Schedule 4,
----------
provided that no such Lien is spread to cover any additional property of
the Borrowers or the Restricted Subsidiaries after the Closing Date and
that the amount of Debt secured thereby shall not subsequently be
increased;
(vii) deposits under workers' compensation, unemployment insurance
and social security laws or to secure the performance of bids, tenders,
contracts (other than for the repayment of borrowed money) or leases, or to
secure statutory obligations of surety or appeal bonds or to secure
indemnity, performance or other similar bonds, in each case in the ordinary
course of business;
(viii) banker's liens and similar Liens (including set-off rights) in
respect of bank deposits;
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties and in connection with
the importation of goods in the ordinary course of the Borrowers' and the
Restrictive Subsidiaries' businesses; and
(x) other Liens existing on the Commitment Date (other than Liens
of the sort described in clause (ii)) that do not in the aggregate exceed
$5,000,000 at any time and that are not in imminent danger of foreclosure.
"Person" means any individual, corporation, limited liability company,
------
partnership, joint venture, estate, trust, unincorporated association, any
Governmental Authority or any bureau, department or agency thereof and any
fiduciary acting in such capacity on behalf of any of the foregoing.
"Plan Assets" means assets of any (i) employee benefit plan (as
-----------
defined in Section 3(3) of ERISA) subject to Title I of ERISA, (ii) plan (as
defined in Section 4975(e)(1) of the Code) subject to Section 4975 of the Code,
or (iii) governmental plan (as defined in Section 3(32) of ERISA) subject to
federal, state or local laws, rules or regulations substantially similar to
Title I of ERISA or Section 4975 of the Code.
"Policies" has the meaning specified in Section 5.16(c).
-------- ---------------
"Prime Rate" means the "prime rate" published in the "Money Rates"
----------
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate," then the
Administrative Agent shall select an equivalent publication that publishes such
"prime rate;" and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Administrative Agent shall select a comparable interest rate index. In
either case, such selection shall be made by the Administrative Agent in its
reasonable discretion and the Administrative Agent shall notify the Borrowers
and the Lenders in writing of its selection.
"Principal Indebtedness" means the aggregate principal amount of the
----------------------
Loan outstanding from time to time.
15
"Properties" means the real property described as such in Schedule 1
----------
hereto and all other real property acquired from time to time by the Borrowers
and the Restricted Subsidiaries, together with all buildings, FF&E and other
Improvements thereon.
"Rating Agencies" means S&P, Xxxxx'x and Fitch.
---------------
"Reference Banks" means four major banks in the London interbank
---------------
market selected by the Administrative Agent in its reasonable discretion.
"Register" has the meaning provided in Section 1.4(b).
-------- --------------
"Regulatory Change" means any change after the date of this Agreement
-----------------
(or with respect to any assignee hereunder, after the date such assignee becomes
a Lender) in federal, state or foreign laws or regulations or the adoption or
the making, after such date, of any interpretations, directives or requests
applying to a class of banks or companies controlling banks, including a Lender
or any company controlling a Lender, which results in a change in the
interpretation or application of any federal, state or foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Release" means any release, spill, emission, leaking, pumping,
-------
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment (including, without limitation, the movement
of Hazardous Substances through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata).
"Required Lenders" means at any time Lenders holding in excess of 50%
----------------
of the aggregate Principal Indebtedness outstanding at such time.
"Restricted Subsidiary" means each direct and indirect Subsidiary of
---------------------
each of the Borrowers (except that (A) the Trust and its Subsidiaries shall not
be Restricted Subsidiaries until the occurrence of the Trust Merger, at which
time the successor to the Trust and the Operating Partnership shall each become
a Borrower (except that each of them shall be liable only with respect to the
Operating Partnership Liability Amount, and each of them shall become a
Restricted Subsidiary when the Operating Partnership Liability Amount has been
reduced to zero), and each of their Subsidiaries shall become a Restricted
Subsidiary, in accordance with Section 1.1(c), (B) none of the Unrestricted
--------------
Joint Ventures shall be Restricted Subsidiaries, and (C) if Properties are the
subject of a Transfer to one or more Subsidiaries of Calwest in connection with
a refinancing of a portion of the Loan by Xxxxxxx Xxxxx Mortgage Company or any
of its Affiliates (as principal or as agent), such Subsidiaries shall not be
Restricted Subsidiaries).
"Revenues" means all rents, income, issues, profits, revenues, and
--------
other benefits paid or payable to the Borrowers or the Restricted Subsidiaries
(without duplication).
"Revolving Credit Agreement" means (A) the Existing Revolving Credit
--------------------------
Agreement, or (B) any replacement thereof that is approved in writing by the
Administrative Agent, provided that (x) if the Revolving Credit Agreement is the
--------
Existing Revolving Credit Agreement or is otherwise entered into on or prior to
the date of the Additional Advances, the
16
Maximum Loan Amount shall be appropriately reduced in accordance with the
definitions of "Maximum Loan Amount" and "Loan Reduction Amount", and (y) the
Borrowers shall not enter into the Revolving Credit Agreement after the date of
the Additional Advances unless and until the Borrowers make a repayment of the
Principal Indebtedness, in the manner set forth in Section 1.6, in an amount
-----------
equal to the maximum availability of funds under such Revolving Credit Agreement
(net of any portion thereof applied to the repayment and termination of the
Existing Revolving Credit Agreement).
"Revolving Credit Availability" at any time means the excess, if any,
-----------------------------
of the Maximum Revolving Credit Loan Amount over the then outstanding principal
balance of the Revolving Credit Loans.
"Revolving Credit Loans" means the loans made to the Borrowers
----------------------
pursuant to the Revolving Credit Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of the
---
XxXxxx-Xxxx Companies, Inc., and its successors.
"Solvency Certificate" means a solvency certificate in form and
--------------------
substance reasonably satisfactory to the Administrative Agent.
"Subsidiary" means, from time to time, (i) any corporation more than
----------
1% of whose stock of any class or classes having by the terms thereof ordinary
or contingent voting power to elect directors of such corporation is at the time
owned by any Borrower directly or indirectly through Subsidiaries, and (ii) any
partnership, association, joint venture, limited liability company or other
entity in which any Borrower directly or indirectly through Subsidiaries has
more than a 1% equity interest at any time.
"Successor Trust" has the meaning set forth in Section 1.1(c)(ii).
--------------- ------------------
"Survey" means a certified title survey (which survey shall be an
------
"as-built" survey in the case of an improved Property), prepared by a registered
independent surveyor and in form reasonably satisfactory to the company issuing
the Title Insurance Policy for such Property.
"Taking" means a taking or voluntary conveyance during the term hereof
------
of all or part of any Property or any interest therein or right accruing thereto
or use thereof, as the direct result of, or in settlement of, any condemnation
or other eminent domain proceeding by any Governmental Authority affecting such
Property or any portion thereof whether or not the same shall have actually been
commenced.
"Telerate Page 3750" means the display designated as "Page 3750" on
------------------
the Dow Xxxxx Telerate Service (or such other page as may replace Page 3750 on
that service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for U.S. Dollar deposits).
17
"Title Insurance Policy" means, with respect to each Property that is
----------------------
subject to a mortgage or deed of trust, as the case may be, in favor of the
Collateral Agent, a lender's title insurance policy or policies (a) issued by a
title company reasonably satisfactory to the Administrative Agent, (b) naming
the Collateral Agent for the benefit of the Lenders as the insured party, (c)
insuring the corresponding Mortgage as being a first-priority perfected lien
upon such Property, subject to such exceptions as are reasonably satisfactory to
the Administrative Agent, (d) in an amount for such Property equal to the fair
market value thereof, and (e) otherwise in form and with such endorsements as
are reasonably acceptable to the Administrative Agent.
"Transaction" means the transactions contemplated by the Loan
-----------
Documents and the Merger Agreement.
"Transaction Costs" means all reasonable costs and expenses paid or
-----------------
payable pursuant to any Loan Document by the Borrowers, the Members or any of
their respective Affiliates relating to the Transaction (including, without
limitation, reasonable legal fees and the costs and expenses described in
Section 8.23(a)).
----------------
"Transfer" means any transfer, sale, assignment or conveyance of all
--------
or any portion of any Property or of any Borrower's or Restricted Subsidiary's
interest therein or any transfer, sale, assignment or conveyance of any direct
or indirect membership or other equity interest held by any Borrower in any
Restricted Subsidiary, excluding the conveyance, sale, lease, assignment,
transfer or other disposition of any Obsolete FF&E of any Borrower or Restricted
Subsidiary in the ordinary course of business.
"Trust" means Cabot Industrial Trust (including, after the Trust
-----
Merger, the Successor Trust).
"Trust Merger" has the meaning set forth in Section 1.1(c)(i).
------------ -----------------
"Unrestricted Joint Ventures" means (i) CCP-Cabot Industrial Investors
---------------------------
I, LLC, a Delaware limited liability company, (ii) CCP-Cabot Industrial
Investors II, LLC, a Delaware limited liability company, (iii) Industrial
Properties Portfolio, L.L.C., a Delaware limited liability company, and (iv) TC
Rancho Cucamonga LLC, a Delaware limited liability company, and each of their
respective Subsidiaries.
"U.S. Person" means a citizen or resident of the United States of
-----------
America, a corporation, partnership or other entity created or organized in or
under any laws of the United States of America or any state or territory
thereof, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income.
"U.S. Taxes" means any U.S. federal withholding tax imposed on
----------
interest payments hereunder.
"Use" means, with respect to any Hazardous Substance, the generation,
---
manufacture, processing, distribution, handling, use, treatment, recycling or
storage of such Hazardous Substance or transportation of such Hazardous
Substance.
18
ARTICLE I
GENERAL TERMS
-------------
1.1. The Loan.
--------
(a) Subject to the terms and conditions of this Agreement, on the
Closing Date the Lenders shall make a loan to the Borrowers (which, if mutually
agreed by the parties, may be made in two installments, the first of which would
be made on the Closing Date and the second of which would be made on a date
thereafter as agreed by the parties), in accordance with their respective
Commitment Percentages (together with the Additional Advances, if any, made
pursuant to Section 1.1(c), the "Loan"), in an aggregate amount equal to the
-------------- ----
Closing Date Advance Amount.
(b) The proceeds of the Loan shall be used by the Borrowers to
finance the consummation of the transactions described in the Merger Agreement
and other general corporate purposes.
(c) The Lenders, in accordance with their respective Commitment
Percentages, shall make (1) a loan to the Operating Partnership (the "Operating
---------
Partnership Advance"), in an aggregate amount equal to the Operating Partnership
-------------------
Advance Amount (and the Operating Partnership shall thereafter be a Borrower for
all purposes hereunder), and (2) if the Additional Calwest Advance Amount is
greater than zero, a loan to Calwest (the "Additional Calwest Advance"), in an
--------------------------
aggregate amount equal to the Additional Calwest Advance Amount, at such time as
the following conditions shall have been satisfied:
(i) the Borrowers shall make a repayment of the Principal
Indebtedness, in the manner set forth in Section 1.6 (but without payment
-----------
of any Breakage Costs), in an amount equal to the excess, if any, of (A)
the sum of the Closing Date Advance Amount plus the Operating Partnership
----
Advance Amount over (B) the Maximum Loan Amount, such that the Principal
Indebtedness shall at no time exceed the Maximum Loan Amount;
(ii) the Acquisition Vehicle shall have acquired the remaining equity
interests of, and shall have merged with, the Trust (the "Trust Merger")
------------
with the result that the surviving entity (the "Successor Trust") shall be
---------------
a direct, wholly-owned Subsidiary of Calwest;
(iii) the Borrowers shall have executed and delivered to the
Administrative Agent a Loan Reduction Amount Certification, and the
Successor Trust and the Operating Partnership shall have each executed and
delivered to the Administrative Agent an assumption agreement in the form
set forth in Exhibit F (the "Assumption Agreement"), which shall
--------- --------------------
acknowledge that each of them has become a Borrower hereunder. The
Assumption Agreement shall constitute each such party's agreement to abide
and be bound by the terms of the Loan Documents as they apply to the
Properties of the Operating Partnership and its Restricted Subsidiaries,
and shall contain representations with respect to the Properties of the
Operating Partnership and its Restricted Subsidiaries that are
substantially equivalent to those contained in Article IV,
-----------
19
provided that pursuant to such assumption agreement, the maximum liability
--------
of each of the Successor Trust and the Operating Partnership hereunder
shall equal the Operating Partnership Liability Amount;
(iv) the Operating Partnership and the Successor Trust shall have
delivered to the Lenders Notes, executed by each of them, jointly and
severally, as a Borrower, in the aggregate amount of the Operating
Partnership Advance Amount, and an Environmental Indemnity Agreement with
respect to the Properties owned by it and its Restricted Subsidiaries;
(v) Calwest shall have delivered to the Lenders amended and
restated Notes, executed by it as a Borrower, in the aggregate amount of
the Principal Indebtedness (after giving effect to the Additional Advances)
minus the Operating Partnership Advance Amount (except that the maximum
-----
liability of the Successor Trust shall equal the Operating Partnership
Liability Amount);
(vi) Calwest shall have delivered to the Administrative Agent the
Calwest Guarantee, pursuant to which Calwest shall guaranty the obligations
of the Operating Partnership under the Notes described in clause (iv)
above;
(vii) the Collateral Agent on behalf of the Lenders shall have
received a perfected first-priority security interest in all equity
interests in the Successor Trust, pursuant to an amended and restated
Calwest Pledge Agreement reasonably satisfactory to the Administrative
Agent;
(viii) the Successor Trust shall have delivered to the Administrative
Agent, with respect to the assumptions, pledges, guarantees and other
documents described above, a legal opinion in form and substance
satisfactory to the Administrative Agent;
(ix) the Successor Trust and the Operating Partnership shall have
delivered to the Administrative Agent all documents reasonably requested by
the Administrative Agent relating to their existence and their due
authorization to assume the obligations and liabilities of the Acquisition
Vehicle with respect to the Loan and to execute and deliver the documents
described in this Section 1.1(c), each in form and substance reasonably
--------------
satisfactory to the Administrative Agent, including, but not limited to, a
certified copy of the applicable resolutions from all appropriate persons,
certified copies of their organizational documents, together with all
amendments thereto, and certificates of good standing or existence issued
as of a recent date by its state of organization and each other state where
each such entity, by the nature of its business, is required to qualify or
register;
(x) no Default shall then be continuing after giving effect to the
Trust Merger;
(xi) no law or regulation shall have been adopted, and no order,
judgment or decree of any Governmental Authority shall have been issued,
which purports to enjoin, prohibit or restrain, or which imposes or results
in the imposition of any material adverse condition upon, the making or
repayment of the Loan or the consummation of any
20
portion of the Transaction, and no suit shall have been brought which is
intended to accomplish the foregoing;
(xii) all conditions precedent contained in the Merger Agreement
shall have been satisfied, and there shall have been no amendment or
modification to the Merger Agreement or any material agreements relating
thereto without the consent of the Administrative Agent, not to be
unreasonably withheld;
(xiii) the representations and warranties herein and in the other Loan
Documents shall be true and correct in all material respects on such date
after giving effect to the Additional Advances (and taking into account
that the Operating Partnership and the Trust shall have become Borrowers
and that the Operating Trust's Subsidiaries shall have become Restricted
Subsidiaries), except to the extent such representations and warranties
expressly relate to an earlier date in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date;
(xiv) the ratio of (x) the aggregate Debt of the Borrowers (including
the Operating Partnership) and the Restricted Subsidiaries, after giving
effect to the borrowing of the Additional Advances, to (y) the aggregate
fair market value of the Properties, as reasonably determined by the
Administrative Agent, shall not exceed 47%;
(xv) the aggregate secured Debt of the Trust and the Operating
Partnership (excluding the Loan, and excluding up to $25 million of debt of
the Unrestricted Joint Ventures that is guaranteed by the Trust), shall not
exceed $240 million;
(xvi) the Trust and the Operating Partnership shall have total
undepreciated real assets with a book value of not less than $1.75 billion;
(xvii) none of the following shall have occurred: (a) a suspension or
material limitation in trading in securities generally on the New York
Stock Exchange; (b) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; (c) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war or the occurrence of any other
calamity or crisis; or (d) any change in national or international
financial, political or economic conditions if the Administrative Agent, in
its sole discretion, determines that the effect of any such event specified
in clause (c) or (d) would materially impair the value of the Collateral or
the value of the Loan. Notwithstanding the foregoing, if (a) the
Administrative Agent elects not to permit the Additional Advances to be
funded because of the failure to meet the condition precedent described in
the preceding sentence and (b) within 30 business days of the initial
occurrence of the first event or condition described in the preceding
sentence giving rise to such failure to meet such condition precedent the
Administrative Agent determines, in its sole discretion, that (A) in the
case of any event or condition specified in clause (a) or (b) of the
preceding sentence, none of the events or conditions described in the
preceding sentence are continuing, unresolved or occurring, and (B) in the
case of any event or condition specified in clause (c) or (d) of the
preceding sentence, neither the
21
value of the Collateral nor the value of the Loan remain materially
impaired, then the Lenders shall from such date once again be obligated to
fund the Additional Advances subject to all of the terms and conditions
hereof. Notwithstanding the foregoing, the Borrowers shall have the right
during such 30 Business Day period to solicit alternate financing for the
Additional Advances. If, during such 30 Business Day period, the Borrowers
receive a bona fide offer for such alternate financing (a "Financing
---- ---- ---------
Offer"), the Borrowers may only accept such Financing Offer if the
-----
Borrowers first give the Lenders the option, at the Lenders' sole
discretion, to either (a) fund the Additional Advances subject to all of
the terms and conditions contained herein (other than this clause (xvii)),
(b) provide the Additional Advances on the terms and conditions of the
Financing Offer, or (c) permit the Borrowers to accept such Financing
Offer, subject to reasonably satisfactory documentation and intercreditor
arrangements. If the Lenders do not elect option (a) or (b) within 15 days
after written notice from the Borrowers, the Lenders shall be deemed to
have elected option (c);
(xviii) the Operating Partnership and the Trust shall have each
delivered to the Administrative Agent a Solvency Certificate; and
(xix) the Borrowers shall have paid all Transaction Costs for which
bills have been submitted (or provided for the direct payment of such
Transaction Costs by the Lenders from the proceeds of the Additional
Advances).
1.2. Extension Options. The Borrowers will have four successive
-----------------
options to extend the Maturity Date, in each case by three months, for a total
extension, if all four options are exercised, of twelve months (each such
three-month period, an "Extension Term"). In order to exercise any such
--------------
extension right, the Borrowers shall deliver to the Administrative Agent notice
of such extension at least 30 days prior to the Maturity Date as in effect
immediately prior to such extension, unless such notice requirement is waived in
writing by the Administrative Agent in its sole discretion (the Maturity Date,
as so in effect, is hereinafter referred to as the "Extension Date" applicable
--------------
to such extension). Upon the giving of each such notice of extension, and
subject to the conditions set forth below in this Section, the Maturity Date as
theretofore in effect will be extended to the Payment Date that is closest to
the three-month anniversary of the Extension Date. If the Borrowers fail to
exercise any extension option strictly in accordance with the provisions hereof,
such extension option, and any and all subsequent extension options hereunder,
will automatically cease and terminate. The Maturity Date shall be extended
pursuant to each of the Borrowers' notices as aforesaid, provided that the
following conditions are satisfied prior to the Extension Date applicable to the
corresponding extension: (i) no Default shall then be continuing; (ii) the
applicable Extension Fee shall have been paid; and (iii) with respect to the
first extension option, the Borrowers and the Restricted Subsidiaries shall have
delivered to the Collateral Agent, as additional collateral for the Loan,
mortgages or deeds of trust, as the case may be (and related assignments of
rents and leases and U.C.C. financing statements), in form and substance
reasonably satisfactory to the Administrative Agent, providing the Collateral
Agent on behalf of the Lenders with first-priority perfected mortgage liens (as
insured by Title Insurance Policies in favor of the Collateral Agent on behalf
of the Lenders, which Title Insurance Policies shall be accompanied by
reasonably acceptable Surveys) on a sufficient number of Properties such that
the outstanding principal balance of the Loan shall not exceed 60% of the
aggregate fair market value of the Properties subject to such mortgage
22
liens, as reasonably determined by the Administrative Agent (which determination
may, in the Administrative Agent's sole discretion, be based on then current
appraisals) and first priority perfected security interests in all related
fixtures and personalty, and the Borrowers shall deliver to the Administrative
Agent legal opinions with respect thereto that are reasonably satisfactory to
the Administrative Agent and shall pay all reasonable costs associated with the
foregoing, including reasonable legal fees, all applicable mortgage recording
taxes and filing costs and the cost of such Title Insurance Policies. Upon the
delivery of the foregoing, provided no Default is then continuing, the Lenders
shall direct the Collateral Agent to release the pledges of equity interests in
Calwest and the Acquisition Vehicle (or the Successor Trust, as the case may
be), and Section 6.1 shall no longer apply to the Properties not subjected to
-----------
such mortgages, except that Section 6.1 shall remain in effect with respect to a
-----------
sufficient number of Properties such that the outstanding principal balance of
the Loan shall be not more than 50% of the aggregate fair market value, as
reasonably determined by the Administrative Agent (which determination may, in
the Administrative Agent's sole discretion, be based upon then current
appraisals), of (x) the Properties of the Borrowers and the Restricted
Subsidiaries (including the Operating Partnership) subject to the mortgage liens
described above and (y) those of the remaining Properties which are unencumbered
by any Debt and which are subject to such prohibitions. For the avoidance of
doubt, the parties acknowledge that the release of specified Properties from the
prohibition contained in Section 6.1 shall in no manner impair the continued
-----------
applicability to all Properties of the other covenants contained herein,
including the prohibitions against Transfers and Debt.
1.3. Security for the Loan. The Notes and the Borrowers' obligations
---------------------
hereunder and under the other Loan Documents shall be fully recourse to the
Borrowers and shall be secured by the following:
(a) a perfected first priority security interest in all equity
interests in Calwest, pursuant to the Parent Pledge Agreement;
(b) prior to the occurrence of the Trust Merger, perfected first
priority security interests in all equity interests in the Acquisition
Vehicle and the other Subsidiaries of Calwest, pursuant to the Calwest
Pledge Agreement, and all equity interests in the Trust owned by the
Acquisition Vehicle, pursuant to the Acquisition Vehicle Pledge Agreement;
(c) from and after the occurrence of the Trust Merger, a perfected
first priority security interest in all equity interests in the Successor
Trust and in all other Subsidiaries of Calwest, pursuant to the Calwest
Pledge Agreement (as amended and restated at the time of the Trust Merger);
(d) a payment guarantee from each of the Restricted Subsidiaries,
pursuant to one or more Omnibus Subsidiary Guarantees, which shall be
amended and restated at the time of the Trust Merger to include the
Restricted Subsidiaries of the Operating Partnership (except that the
guarantees of the Restricted Subsidiaries of the Operating Partnership
shall be only with respect to the Operating Partnership Liability Amount);
23
(e) from and after the date of the Operating Partnership Advance, a
payment guarantee from Calwest with respect to the Notes issued by the
Operating Partnership, pursuant to the Calwest Guarantee;
(f) from and after the commencement of the first Extension Term, the
perfected first priority mortgages and/or deeds of trust described in
Section 1.2; and
-----------
(g) a perfected first priority security interest in any Loss Proceeds
Account.
1.4. Borrowers' Notes.
----------------
(a) From and after the Closing Date, the Borrowers' obligation to pay
the principal of and interest on the Loan shall be evidenced by the Notes, which
may be further divided into multiple Notes in connection with Assignments of
portions of the Loan pursuant to Section 8.9.
-----------
(b) The Administrative Agent shall maintain, or cause to be
maintained, a register (the "Register") at the address to which notices to the
--------
Administrative Agent are to be sent hereunder, on which it enters the name of
each Lender as the registered owner of each Note held by such Xxxxxx. Any
assignment or transfer of all or part of any Note may be effected by
registration of such assignment or transfer on the Register, together with the
surrender of the applicable Note(s) duly endorsed by (or accompanied by a
written instrument of assignment or transfer duly executed by) the holder of
such Note, whereupon, at the request of the designated assignee(s) or
transferee(s), the applicable Borrowers shall issue one or more new Notes in the
same aggregate principal amount as any Note surrendered in favor of the
designated assignor(s), transferor(s), assignee(s) and/or transferee(s) (which
surrendered Note shall be delivered by the Administrative Agent to the Borrowers
upon the Borrowers' delivery of such new Note(s)). Notwithstanding the
foregoing, any failure by the Borrowers to issue such new Note(s) shall not in
any way impair the effectiveness of such assignment or transfer. Prior to the
registration of assignment or transfer of any portion of the Loan (and the
Note(s) evidencing the same), the Collateral Agent and the Administrative Agent
shall be entitled to treat the Person in whose name such portion (and the
Note(s) evidencing the same) is registered as the owner thereof for the purpose
of receiving all payments thereon and for all other purposes, notwithstanding
notice to the contrary.
(c) Each Lender shall have the right at any time, at such Xxxxxx's
sole discretion, to replace any Note held by it with two or more replacement
Notes. Each replacement Note shall be in the form of the replaced Note but for
its principal amount and interest rate. The principal amount of each Note shall
be determined by such Lender in its sole discretion, provided that the sum of
--------
the principal amounts of the replacement Notes shall equal the sum of the
principal amounts of the replaced Notes. The interest rate of each replacement
Note shall be determined by such Lender in its sole discretion, provided that
--------
the weighted average of all Notes, weighted on the basis of the respective
principal balances of the Notes, shall equal the interest rate set forth herein.
The Borrowers shall execute and return to such Lender each such Note reasonably
promptly after their receipt of an execution copy thereof. Notwithstanding any
such bifurcation of Notes, all payments by the Borrowers hereunder shall be made
to the account specified by the Administrative Agent pursuant to Section 1.9.
-----------
24
1.5. Principal and Interest.
----------------------
(a) Commencing with the Initial Payment Date, and on each and every
Payment Date thereafter, the Borrowers shall be jointly and severally liable to
pay interest on the Principal Indebtedness for the Interest Accrual Period in
which such Payment Date falls at a rate per annum equal to the sum of LIBOR,
determined as of the Interest Determination Date immediately preceding the
applicable Interest Accrual Period (which, from the funding of the Additional
Advances until the first Payment Date thereafter, may be different for the
Closing Date Advance Amount, on the one hand, and the Additional Advances, on
the other), plus the Applicable Spread (except that interest shall be payable on
----
the Indebtedness at the Default Rate with respect to any portion of such
Interest Accrual Period falling during the continuance of an Event of Default;
the rate of interest when an Event of Default does not exist, the "Interest
--------
Rate"). On the Closing Date, the Borrowers shall pay interest from and including
----
the Closing Date through the end of the first Interest Accrual Period. Interest
payable hereunder shall be computed on the basis of a 360-day year and the
actual number of days elapsed.
(b) No prepayments shall be permitted except as provided in Sections
--------
1.6 and 1.7 hereof. The entire outstanding Principal Indebtedness, together with
--- ---
all accrued but unpaid interest thereon to (but excluding) the Maturity Date and
all other amounts then due under the Loan Documents, shall be due and payable by
the Borrowers to the Lenders (jointly and severally, except that the Trust and
the Operating Partnership shall only be liable for the Operating Partnership
Liability Amount) on the Maturity Date.
(c) All payments made by the Borrowers hereunder or under the other
Loan Documents shall be made irrespective of, and without any deduction for, any
setoffs or counterclaims.
(d) Any payments of interest and/or principal not paid when due
hereunder shall bear interest at the applicable Default Rate and, when paid,
shall be accompanied by a late fee in an amount equal to 3% times the amount of
such late payment. The Borrowers acknowledge that (i) a delinquent payment will
cause damage to the Lenders; (ii) the late fee is intended to compensate the
Lenders for the loss of use of the delinquent payment and the expense incurred
and time and effort associated with recovering the delinquent payment; (iii) it
will be extremely difficult and impractical to ascertain the extent of the
Lenders' damages caused by the delinquency; and (iv) the late fee represents the
Lenders' and the Borrowers' reasonable estimate of the Lenders' damages from the
delinquency and is not a penalty.
1.6. Voluntary Prepayment.
--------------------
(a) The Borrowers may voluntarily prepay the Loan in whole or in part
from time to time; provided, however, that (i) any such prepayment shall be
-------- -------
accompanied by the amount of all accrued and unpaid interest on the principal
amount of the Loan to be repaid and all other amounts then due under the Loan
Documents, and (ii) if such payment does not occur on a Payment Date, such
prepayment shall further be accompanied by all applicable Breakage Costs. All
prepayments and associated payments under this Section 1.6(a) shall be made to
--------------
the Administrative Agent for the ratable benefit of the Lenders in accordance
with their respective Commitment Percentages, and the principal amounts thereof
shall be applied first to reduce the
-----
25
outstanding principal balance of the Notes issued by Calwest and the Acquisition
Vehicle, until those Notes have been repaid in full, and second to reduce the
------
outstanding principal balance of the Notes issued by the Operating Partnership.
(b) The Borrowers shall give the Administrative Agent at least 15
days' prior written notice of any voluntary prepayment (unless such notice
requirement is waived in writing by the Administrative Agent in its sole
discretion). If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein; provided, however, that
-------- -------
if such prepayment is not made on such date (x) Borrower's notice of prepayment
will be deemed rescinded, (y) such prepayment shall not be due and payable on
such date, and (z) the Borrowers shall on such date pay to the Administrative
Agent for the account of the Lenders all losses and out-of-pocket costs and
expenses suffered by the Lenders as a consequence of such rescission.
1.7. Mandatory Prepayment.
--------------------
(a) If a Borrower or a Restricted Subsidiary shall at any time
Transfer any single Property or group of Properties, then the Borrowers shall,
prior to or concurrently with the consummation of such Transfer, make a
mandatory prepayment of the outstanding principal balance of the Loan in an
amount equal to the applicable Net Liquidation Proceeds; provided that with
--------
respect to any Transfers that occur after the Principal Indebtedness has been
reduced to $1 billion, if required under the Revolving Credit Agreement, the
applicable Net Liquidation Proceeds shall be applied toward mandatory
prepayments of the outstanding principal balances of the Loan and the Revolving
Credit Loans, pro rata in accordance with their then-outstanding principal
--- ----
balances (provided that the outstanding principal balance of the Revolving
Credit Loans for this purpose shall at no time be higher than the Maximum
Revolving Credit Loan Amount at such time). Notwithstanding the foregoing, if
the Revolving Credit Agreement is the Existing Revolving Credit Agreement, then
regardless of the amount of the Principal Indebtedness, Net Liquidation Proceeds
shall be applied toward the prepayment of the Revolving Credit Loans only if and
to the extent required in order for the Operating Partnership to remain in
compliance with the Revolving Credit Agreement, and the entire remainder of the
Net Liquidation Proceeds shall be applied toward the mandatory prepayment of the
outstanding principal balance of the Loan. Each mandatory prepayment hereunder
shall be accompanied by (i) the amount of all accrued and unpaid interest on the
principal amount so prepaid, (ii) all other amounts then due and payable under
the Loan Documents, and (iii) if such prepayment does not occur on the Payment
Date, any applicable Breakage Costs (except that if amounts required to be
applied toward the mandatory prepayment of the Loan are received by the
Borrowers on a date that is not a Payment Date, then provided no Event of
Default is then continuing, the Borrowers shall have the option of depositing
the amount of such mandatory prepayment into escrow with the Administrative
Agent on behalf of the Lenders with irrevocable instructions that such amount be
applied toward such prepayment on the first Payment Date thereafter). All
prepayments and associated payments under this Section 1.7(a) shall be made to
--------------
the Administrative Agent for the ratable benefit of the Lenders in accordance
with their respective Commitment Percentages, and the principal amounts thereof
shall be applied first to reduce the outstanding principal balance of the Notes
-----
issued by Calwest and the Acquisition Vehicle, until those Notes have been
repaid in full, and second to reduce the outstanding principal balance of the
------
Notes issued by the Operating Partnership; provided that with respect to any
--------
Transfer of a Property that is owned by the
26
Operating Partnership or any of its Subsidiaries, such principal amounts shall
be applied first to reduce the outstanding principal balance of the Notes issued
by the Operating Partnership, until those Notes have been repaid in full, and
second to reduce the outstanding principal balance of the Notes issued by
------
Calwest and the Acquisition Vehicle.
(b) The Borrowers shall give the Administrative Agent and the
Collateral Agent at least 30 days' advance written notice of any prepayment
under Section 1.7(a). If such notice is given, the amount specified in such
--------------
notice shall be due and payable on the date specified therein; provided,
--------
however, that if such prepayment is not made on such date (x) Borrower's notice
-------
of prepayment will be deemed rescinded, and (y) the Borrowers shall on such date
pay to the Administrative Agent for the account of the Lenders all documented
reasonable losses and out-of-pocket costs and expenses suffered by the Lenders
as a consequence of such rescission. Upon payment of the amounts specified
above, and upon written direction of the Administrative Agent delivered in
accordance with Section 9.4(a) hereof, the Collateral Agent will execute and
--------------
deliver to the Borrowers such instruments, prepared by the Borrowers, as shall
be necessary to release the applicable Property and the other Collateral
relating solely to such Property from the Liens of the Loan Documents.
(c) In the event of any Casualty or Taking affecting a Property in
respect of which none of the Administrative Agent or the Lenders is obligated or
elects to make available Loss Proceeds for restoration pursuant to Section
-------
5.17(b), such Loss Proceeds shall be applied to the prepayment of the
-------
Indebtedness whether or not then due and payable, in a manner analogous to
prepayments in respect of Transfers pursuant to Section 1.7(a).
--------------
1.8. Application of Payments after Event of Default. Upon the
----------------------------------------------
occurrence and during the continuance of an Event of Default, payments on and
with respect to the Indebtedness shall be applied as follows: first, any
-----
reasonable out-of-pocket costs and expenses of the Administrative Agent, the
Lenders and the Collateral Agent arising as a result of such payment or Event of
Default or enforcement of the Loan Documents in connection therewith, and any
other portion or portions of the Indebtedness other than principal and interest;
second, any accrued and unpaid interest then payable with respect to the Loan;
------
and third, the outstanding principal amount of the Loan; provided that the
----- --------
Lenders may, by written agreement executed by all Xxxxxxx, alter the foregoing
sequence without the consent of the Borrowers. The Administrative Agent shall
provide written notice to the Borrowers of any applicable payments in accordance
with this Section 1.8.
-----------
1.9. Method and Place of Payment. Except as otherwise specifically
---------------------------
provided herein, all payments and prepayments under this Agreement and the Notes
shall be made to the Administrative Agent not later than 11:00 a.m., New York
City time on the date when due and shall be made in lawful money of the United
States of America by wire transfer in federal or other immediately available
funds to such account as shall be specified from time to time by the
Administrative Agent. Any funds received by the Administrative Agent after such
time shall, for all purposes hereof, be deemed to have been paid on the next
succeeding Business Day. The Administrative Agent shall notify the Borrowers in
writing of any changes in the account to which payments are to be made.
27
1.10. Taxes.
-----
(a) The Borrowers agree to indemnify Lender against any present or
future stamp, documentary or other similar or related taxes or other similar or
related charges now or hereafter imposed, levied, collected, withheld or
assessed by any United States Governmental Authority by reason of the execution
and delivery of the Loan Documents and any consents, waivers, amendments and
enforcement of rights under the Loan Documents; provided, however, that under no
circumstances shall the Borrowers be liable for payment of income or similar tax
to the Administrative Agent or the Lenders.
(b) If the Borrowers are required by law to withhold or deduct any
amount from any payment hereunder in respect of any U.S. Tax, the Borrowers
shall withhold or deduct the appropriate amount, remit such amount to the
appropriate Governmental Authority and pay to each Person to whom there has been
an Assignment or Participation of a Loan and who is not a U.S. Person such
additional amounts as are necessary in order that the net payment of any amount
due to such non-U.S. Person hereunder after deduction for or withholding in
respect of any U.S. Tax imposed with respect to such payment (or in lieu
thereof, payment of such U.S. Tax by such non-U.S. Person), will not be less
than the amount stated in this Agreement to be then due and payable; except that
the foregoing obligation to pay such additional amounts shall not apply (i) to
any assignee that has not complied with the obligations contained in Section
-------
8.9(b), (ii) to any U.S. Taxes imposed solely by reason of the failure by such
------
Person (or, if such Person is not the beneficial owner of the relevant Loan,
such beneficial owner) to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connections with the United States of America of such
Person (or beneficial owner, as the case may be) if such compliance is required
by statute or regulation of the United States of America as a precondition to
relief or exemption from such U.S. Taxes; or (iii) with respect to any Person
who is a fiduciary or partnership or other than the sole beneficial owner of
such payment, to any U.S. Tax imposed with respect to payments made under any
Note to a fiduciary or partnership to the extent that the beneficial owner or
member of the partnership would not have been entitled to the additional amounts
if such beneficial owner or member of the partnership had been the holder of the
Note.
(c) Within 30 days after paying any amount from which it is required
by law to make any deduction or withholding, and within 30 days after it is
required by law to remit such deduction or withholding to any relevant taxing or
other authority, the Borrowers shall deliver to such non-U.S. Person
satisfactory evidence of such deduction, withholding or payment (as the case may
be).
1.11. Regulatory Change, etc. If, as a result of any Regulatory
----------------------
Change:
(a) any reserve, special deposit or similar requirements (other than
such requirements as are taken into account in determining LIBOR) relating to
any extensions of credit or other assets of, or any deposits with or other
liabilities of any Lender or any company controlling any Lender is imposed,
modified or deemed applicable; or
(b) any other condition affecting the Loan is imposed on any Lender
or any company controlling any Lender and such Lender as a result of any of the
foregoing events
28
reasonably determines that, by reason thereof, the cost to such Lender or any
company controlling such Lender of making or maintaining the Loan is increased,
or any amount receivable by such Lender or any company controlling such Lender
hereunder in respect of any portion of the Loan is reduced, in each case by an
amount deemed by such Lender to be material (such increases in cost and
reductions in amounts receivable being herein called "Increased Costs"),
---------------
then the Borrowers will pay to such Lender upon such Xxxxxx's request such
additional amount or amounts as will compensate such Lender or any company
controlling such Lender for such Increased Costs to the extent such Lender
reasonably determines that such Increased Costs are allocable to the Loan. Such
Lender will notify the Borrowers of any Regulatory Change which will entitle
such Lender to compensation pursuant to this Section 1.11 as promptly as
------------
practicable after it obtains knowledge thereof and determines to request such
compensation and in any event within 180 days after the date of such Regulatory
Change.
1.12. Unavailability, etc. Without limiting the effect of Section
------------------- -------
1.11, in the event that, (a) by reason of any Regulatory Change, a Lender or the
----
company controlling such Lender incurs Increased Costs based on or measured by
the excess above a specified level of the amount of a category of deposits or
other liabilities of such Lender or such company controlling a Lender, which
includes deposits by reference to which LIBOR is determined, or (b) the
Administrative Agent shall have determined in good faith after reasonable
investigation that dollar deposits in the principal amount of the Loan are not
generally available in the London interbank market, or (c) reasonable means do
not exist for ascertaining LIBOR, then, if the Administrative Agent so elects by
notice to the Borrowers, the interest rate applicable to then outstanding
principal balance of the Loan shall be converted to the Prime Rate plus the
Applicable Spread.
1.13. Pro Rata Treatment. Except to the extent otherwise provided
------------------
herein, the Loan, each payment or prepayment of principal of the Loan, and each
payment of interest on the Loan, shall be allocated among the Lenders pro rata
--- ----
in accordance with their Commitment Percentages. The Administrative Agent agrees
to forward to the Lenders such principal and interest payments on or prior to
the second Business Day after such amounts are received, collected or applied by
the Administrative Agent.
1.14. Sharing of Payments. Each Lender agrees that, in the event that
-------------------
any Lender shall obtain payment in respect of the Loan through the exercise of a
right of set-off, banker's lien, counterclaim or otherwise (including, but not
limited to, pursuant to the U.S. Bankruptcy Code) in excess of its Commitment
Percentage, such Lender shall promptly notify the Administrative Agent of such
fact and purchase from the other Lenders a participation in the Loan in such
amounts and with such other adjustments from time to time as shall be equitable
in order that all Lenders share such payment in accordance with their respective
Commitment Percentages. Each Lender further agrees that if a payment to a Lender
(which is obtained by such Lender through the exercise of a right of set-off,
banker's lien, counterclaim or otherwise) shall be rescinded or must otherwise
be restored, each Lender which shall have shared the benefit of such payment
shall, by repurchase of a participation theretofore sold, return its share of
that benefit to each Lender whose payment shall have been rescinded or otherwise
restored. Any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all
29
rights of payment, including set-off, banker's lien or counterclaim, with
respect to such participation as fully as if such Lender were a holder of the
Loan or other obligation in the amount of such participation. The Administrative
Agent shall keep records (which shall be prima facie evidence) of participations
----- -----
purchased pursuant to this Section and shall in each case notify the Lenders and
the Borrowers following any such purchases. Except as otherwise expressly
provided in this Agreement, if any Lender shall fail to remit to the
Administrative Agent or any other Lender an amount payable by such Lender to the
Administrative Agent or such other Lender pursuant to this Agreement by 2:00
p.m. on the date when such amount is due, such payments shall accrue interest
thereon, for each day from the date such amount is due until the day such amount
is paid to the Administrative Agent or such other Lender, at a rate per annum
equal to the Federal Funds Rate.
1.15. Release. Upon payment of the Indebtedness in full, the
-------
Administrative Agent shall cause to be delivered to the Borrowers instruments
prepared by the Borrowers releasing and discharging all Liens on all Collateral
securing payment of the Indebtedness (subject to Xxxxxxxx's obligation to pay
any associated fees and expenses).
1.16. Mitigation. Any Lender which becomes aware of (i) any Regulatory
----------
Change which will make it unlawful or impossible for such Lender to make or
maintain the Loan based on LIBOR or (ii) any Regulatory Change or other event or
condition which will obligate the Borrowers to pay any amount pursuant to
Sections 1.10 or 1.11 shall notify the Borrowers and the Administrative Agent
------------- ----
thereof as promptly as practical. If any Lender has given notice of any such
Regulatory Change or other event or condition and thereafter becomes aware that
such Regulatory Change or other event or condition has ceased to exist, such
Lender shall notify the Borrowers and the Administrative Agent thereof as
promptly as practical. Each Lender affected by any Regulatory Change which makes
it unlawful or impossible for such Lender to make or maintain any Loan based on
or LIBOR or to which the Borrowers are obligated to pay any amount pursuant to
Sections 1.10 or 1.11 shall use reasonable commercial efforts (including
------------- ----
changing the jurisdiction of its applicable lending office) to avoid the effect
of such Regulatory Change or to avoid or materially reduce any amounts which the
Borrowers are obligated to pay pursuant to Sections 1.10 or 1.11 if, in the
------------- ----
opinion of such Lender, such efforts would not be disadvantageous to such Lender
or contrary to such Lender's normal banking practices.
ARTICLE II
ACCOUNTS
--------
2.1. Loss Proceeds Account. Upon the occurrence of a Casualty or
---------------------
Taking with respect to a Property which results in the aggregate anticipated
Loss Proceeds exceeding $10 million, the Lenders shall establish and maintain
with the Collateral Agent (or such other financial institution as shall be
selected by the Lenders) as a separate account for the benefit of the Lenders an
account (the "Loss Proceeds Account") for the deposit of Loss Proceeds which are
---------------------
required to be deposited into the Loss Proceeds Account pursuant to this
Agreement. Funds in the Loss Proceeds Account shall not be commingled with any
other monies at any time. The Loss Proceeds Account shall be in the name of the
Collateral Agent for the benefit of the Lenders. Amounts contained in the Loss
Proceeds Account shall be applied in accordance with Sections 5.17 and/or
-------------
1.7(c), as the case may be.
------
30
2.2. Pledge.
------
(a) The Borrowers hereby grant a first-priority security interest in
favor of the Collateral Agent for the benefit of the Lenders in and to the Loss
Proceeds and the Loss Proceeds Account as security for the Indebtedness,
together with all rights of a secured party with respect thereto. The Borrowers
shall execute any additional documents that the Administrative Agent in its
reasonable discretion may require and shall provide all other evidence
reasonably requested by the Administrative Agent to evidence the Collateral
Agent's first-priority security interest in the Loss Proceeds and the Loss
Proceeds Account.
(b) So long as no Event of Default shall be continuing, the Borrowers
shall be permitted to direct the investment of the funds from time to time held
in the Loss Proceeds Account in Permitted Investments and to sell and reinvest
proceeds from the sale or liquidation of Permitted Investments in other
Permitted Investments, with all such proceeds and reinvestments to be held in
the Loss Proceeds Account; provided, however, that the maturity of an adequate
-------- -------
portion of the Permitted Investments on deposit in the Loss Proceeds Account
shall be no later than the Business Day immediately preceding the date on which
such funds are required to be withdrawn therefrom pursuant to this Agreement.
All income and gains from the investment of funds in the Loss Proceeds Account
shall be credited to the Loss Proceeds Account. As between the Borrowers and the
Lenders, the Borrowers shall treat all income, gains and losses from the
investment of amounts in the Loss Proceeds Account as their income or loss for
federal, state and local income tax purposes.
(c) After the Loan and all other Indebtedness have been paid in full,
at the request of the Borrowers, the Loss Proceeds Account shall be closed and
the balances, if any, therein shall be paid to the Borrowers.
2.3. Remedies. In addition to other rights and remedies provided the
--------
Administrative Agent and the Lenders elsewhere in this Agreement and the other
Loan Documents, upon the occurrence and during the continuance of an Event of
Default, the Lenders may, without notice or liability to the Borrowers, apply
any or all Loss Proceeds for the purposes described in Section 1.8.
-----------
Notwithstanding the foregoing, after the occurrence and during the continuation
of an Event of Default, the Administrative Agent may, in its sole discretion,
cause all or a portion of the Loss Proceeds to be applied toward payment of
operating expenses and/or capital expenditures with respect to the Properties.
ARTICLE III
CONDITIONS PRECEDENT
--------------------
3.1. Conditions Precedent to the Loan. This Agreement shall become
--------------------------------
effective and the Lenders shall be obligated to fund an amount of the Loan equal
to the Closing Date Advance Amount on the date that all of the following
conditions shall have been satisfied or waived in writing by the Administrative
Agent:
(A) Merger Transaction. The Borrowers shall have acquired (or shall
------------------
acquire simultaneously with the making of the Loan) in accordance with
applicable law sufficient equity
31
interests in the Trust to have sufficient voting rights to unilaterally cause
the Trust Merger subsequently to occur (and in any event at least 50% of such
equity interests), and the Administrative Agent shall have received reasonable
evidence thereof.
(B) Loan Documents. The Borrowers shall have executed and delivered
--------------
to the Lenders and the Administrative Agent this Agreement and the Notes, and
the Borrowers and the Restricted Subsidiaries shall have executed and delivered
to the Lenders and the Administrative Agent each of the other Loan Documents to
which they are a party.
(C) UCC Financing Statements. The Borrowers and the applicable
------------------------
Restricted Subsidiaries shall have (i) authorized the Administrative Agent to
prepare and file such UCC financing statements relating to the Collateral, in
such form, as the Administrative Agent shall reasonably request and (ii)
executed and delivered such other documents as are required to perfect the
Collateral Agent's security interests with respect to the Collateral.
(D) Opinions of Counsel. The Administrative Agent shall have received
-------------------
from outside counsel to the Borrowers and the Members legal opinions in form and
substance reasonably satisfactory to the Administrative Agent. Each such legal
opinion shall be addressed to the Lenders and their respective successors and
assigns and shall be dated the Closing Date.
(E) Good Standing. The Administrative Agent shall have received with
-------------
respect to each Borrower, each Member and each of the Restricted Subsidiaries
recent good standing certificates from the applicable Secretary of State.
(F) Certified Resolutions, Etc. The Administrative Agent or its
--------------------------
counsel shall have received a certificate of an officer of each Borrower, each
of the Restricted Subsidiaries and each of the Members, dated the Closing Date,
certifying (i) as to the names and true signatures of its incumbent officers
authorized to sign the Loan Documents to which such Borrower, Member or
Restricted Subsidiary, as the case may be, is a party, (ii) as to the form of
their respective certificates of formation and operating agreements or other
constituent documents as theretofore amended and then in effect, and (iii) as to
the resolutions approving and authorizing the execution, delivery and
performance of the Loan Documents to which it is a party, which resolutions
shall authorize the actions contemplated by the Loan Documents to be taken by
such entities in connection with the making of the Loan.
(G) Insurance. The Administrative Agent shall have received
---------
certificates of insurance (XXXXX Form 27) demonstrating insurance coverage of
types, in amounts, with insurers and otherwise in compliance with the terms,
provisions and conditions set forth herein. Such certificates shall indicate
that the Collateral Agent and the Lenders are named as additional insureds as
their interests may appear and each casualty policy of insurance shall contain a
loss payee endorsement in favor of the Collateral Agent for the benefit of the
Lenders.
(H) Closing Statement. The Administrative Agent shall have received a
-----------------
detailed closing statement from the Borrowers, in a form reasonably acceptable
to the Administrative Agent, which includes a complete description of the
Borrowers' sources and uses of funds on the Closing Date.
32
(I) No Default or Event of Default. Immediately following the
------------------------------
consummation of the Closing, no Default or Event of Default will exist.
(J) No Injunction. No law or regulation shall have been adopted, and
-------------
no order, judgment or decree of any Governmental Authority shall have been
issued, which purports to enjoin, prohibit or restrain, or which imposes or
results in the imposition of any material adverse condition upon, the making or
repayment of the Loan or the consummation of any portion of the Transaction, and
no suit shall have been brought which is intended to accomplish the foregoing.
(K) Representations and Warranties. The representations and
------------------------------
warranties herein and in the other Loan Documents shall be true and correct in
all material respects on such date after giving effect to the Closing, except to
the extent such representations and warranties expressly relate to an earlier
date in which case such representations and warranties shall be true and correct
in all material respects as of such earlier date.
(L) Solvency Certificate. The Administrative Agent shall have
--------------------
received from each Borrower and each Restricted Subsidiary a Solvency
Certificate duly executed by a duly authorized officer on behalf of such entity.
(M) Transaction Costs. The Borrowers shall have paid all Transaction
-----------------
Costs for which bills have been submitted (or provided for the direct payment of
such Transaction Costs by the Lenders from the proceeds of such Loan).
(N) Lien Search Reports. The Administrative Agent shall have received
-------------------
reports of lien and title searches conducted by search firms acceptable to the
Administrative Agent with respect to the Properties, the Borrowers and the
Restricted Subsidiaries (and their immediate predecessors), such searches to be
conducted in such locations as the Administrative Agent shall have reasonably
requested, and such searches shall not disclose any breaches in any of the
representations and warranties contained herein in a manner that would be
reasonably likely to have a Material Adverse Effect.
(O) Revolving Credit Agreement. The Administrative Agent shall have
--------------------------
received a copy of the Revolving Credit Agreement, which shall be in form and
substance satisfactory to the Administrative Agent.
(P) Leverage Ratio. The ratio of (x) the aggregate Debt of the
--------------
Borrowers, the Restricted Subsidiaries and the Operating Partnership after
giving effect to the borrowing of the Closing Date Advance Amount to (y) the
aggregate fair market value of the Properties, as reasonably determined by the
Administrative Agent, shall not exceed 47%.
(Q) Secured Trust Debt. The aggregate secured Debt of the Trust and
------------------
the Operating Partnership and any Subsidiaries of the Operating Partnership
shall not exceed $240 million (for these purposes there shall be disregarded up
to $25 million of debt of the Unrestricted Joint Ventures that is guaranteed by
the Trust).
(R) Trust Assets. The Trust and the Operating Partnership shall have
------------
total undepreciated real assets with a book value of not less than $1.75
billion.
33
(S) No Material Adverse Change. On or after the Commitment Date
--------------------------
there shall not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange;
(ii) a general moratorium on commercial banking activities declared by either
Federal or New York State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States;
(iii) the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war or the
occurrence of any other calamity or crisis or (iv) any change in national or
international financial, political or economic conditions if the Administrative
Agent, in its sole discretion, determines that the effect of any such event
specified in clause (iii) or (iv) would materially impair the value of the
Collateral or the value of the Loan. Notwithstanding the foregoing, if (i) the
Administrative Agent elects not to permit the Loan to be funded because of the
failure to meet the condition precedent described in the preceding sentence and
(ii) within 30 Business Days of the initial occurrence of the first event or
condition described in the preceding sentence giving rise to such failure to
meet such condition precedent the Administrative Agent determines, in its sole
discretion, that (A) in the case of any event or condition specified in clause
(i) or (ii) of the preceding sentence, none of the events or conditions
described in the preceding sentence are continuing, unresolved or occurring, and
(B) in the case of any event or condition specified in clause (iii) or (iv) of
the preceding sentence, neither the value of the Collateral nor the value of the
Loan remain materially impaired, then the Lenders shall from such date once
again be obligated to fund the Loan subject to all of the terms and conditions
contained herein (other than this Section 3.1(S)). Notwithstanding the
foregoing, the Borrowers shall have the right during such 30 Business Day period
to solicit alternate financing. If, during such 30 Business Day period, the
Borrowers receive a bona fide offer for alternate financing (a "Financing
---- ---- ---------
Offer"), the Borrowers may only accept such Financing Offer if the Borrowers
-----
first give the Lenders the option, at the Lenders' sole discretion, to either
(a) fund the Loan subject to all of the terms and conditions contained herein,
(b) provide financing on the terms and conditions of the Financing Offer, or (c)
terminate this Loan Agreement and permit the Borrowers to accept such Financing
Offer. If the Lenders do not elect option (a) or (b) within 15 days after
written notice from the Borrowers, the Lenders shall be deemed to have elected
option (c) and this Loan Agreement (other than Section 8.23) shall terminate.
------------
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrowers hereby represent and warrant to each Lender, as of the
Closing Date and as of the date on which the Borrowers accept the Additional
Advances (such acceptance constituting a confirmation of such representations
and warranties), as follows:
4.1. Merger Agreement Representations. Prior to the Commitment Date,
--------------------------------
the Borrowers delivered to the Administrative Agent a true and complete copy of
the Merger Agreement and all related agreements. Since the Commitment Date, no
amendments or supplements thereto, or other modifications thereof, have been
entered into. To the best knowledge of the Borrowers, no default by any party
exists under the Merger Agreement or any such related agreement.
34
4.2. Formation; Existence; Qualification; Power. Each of the
------------------------------------------
Members, Borrowers and Restricted Subsidiaries (i) is a duly formed and validly
existing limited partnership, limited liability company or corporation in good
standing under the laws of its jurisdiction of formation, (ii) is qualified to
do business in all states in which it conducts business, the failure of which
would cause a Material Adverse Effect, (iii) has the requisite corporate,
limited liability company or limited partnership power and authority to own its
properties and to carry on its business as now being conducted, (iv) has the
requisite corporate, limited partnership or limited liability company power to
execute and deliver, and perform its obligations under, the Loan Documents to
which it is a party, and (v) has duly executed and delivered the Loan Documents
to which it is a party. A list of the Restricted Subsidiaries, the Properties
owned by each of them and the identity of their respective equityholder(s) is
attached as Schedule 6 hereto.
----------
4.3. Authorization; No Conflict; Consents and Approvals. The
--------------------------------------------------
execution and delivery by each Member, Borrower and Restricted Subsidiary of
each Loan Document to which it is a party, its performance of its obligations
thereunder and the creation of the security interests and Liens granted by it
pursuant to this Agreement and the other Loan Documents to which it is a party
and the consummation of the Transaction (i) have been duly authorized by all
requisite limited partnership, limited liability company or corporate action,
(ii) will not violate (A) their respective formation documents, or (B) any
provision of any Legal Requirements or Environmental Laws, any order of any
court or other Governmental Authority, or, except as set forth in Schedule 7,
----------
any material agreement or other instrument to which any of them is a party or by
which any such entity is bound, and (iii) will not be in conflict with, result
in a breach of, or constitute (with due notice or lapse of time or both) a
default under, or result in the creation or imposition of any Lien of any nature
whatsoever (other than Permitted Liens) upon any of the property or assets of
any such entity pursuant to, any such material agreement or instrument. Other
than those obtained or filed on or prior to the Closing Date, no such party is
required to obtain any consent, approval or authorization from, or to file any
declaration or statement with, any Governmental Authority or other agency or
court in connection with or as a condition to the execution, delivery or
performance of this Agreement or the other Loan Documents.
4.4. Enforceability. This Agreement, the Notes and each other Loan
--------------
Document are the legal, valid and binding obligations of the Borrowers, the
Members and the Restricted Subsidiaries that are parties thereto, enforceable
against such Persons (as applicable) in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity. This Agreement, the Notes and the other Loan Documents
are, as of the Closing Date, not subject to any right of rescission, set-off,
counterclaim or defense by any Borrower (including the defense of usury), and no
Borrower has asserted any right of rescission, set-off, counterclaim or defense
with respect thereto.
4.5. Solvency. On the Closing Date and on the date of the Additional
--------
Advances, in each case after giving effect to the transactions contemplated
hereby, the fair salable value of each Borrower's assets will exceed such
Xxxxxxxx's total liabilities (including, without limitation, subordinated,
unliquidated, disputed and contingent liabilities). On the Closing Date and on
the date of the Additional Advances, in each case after giving effect to the
transactions contemplated hereby, neither Xxxxxxxx's assets will constitute
unreasonably small
35
capital to carry out its business as conducted or as proposed to be conducted.
Neither Borrower intends to, or believes that it will, incur debts and
liabilities (including, without limitation, contingent liabilities and other
commitments) beyond its ability to pay such debts as they mature.
4.6. Use of Proceeds; Margin. The Borrowers will use the proceeds of
-----------------------
the Loan for the purposes described in Section 1.1(b). The aggregate fair market
-------------
value of the Properties owned by Calwest (excluding the Trust, the Operating
Partnership and the Properties owned by the Operating Partnership), as
reasonably determined by Calwest, is not less than $2.3 billion.
4.7. No Default or Event of Default. No Default or Event of Default
------------------------------
exists or will exist after giving effect to this Agreement.
4.8. No Material Misrepresentation. The information provided to
-----------------------------
Administrative Agent by the Borrowers, the Members and their respective
affiliates relating to the Borrowers, the Restricted Subsidiaries, the Operating
Partnership and the Properties does not contain any untrue statement of a
material fact, or omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading.
4.9. Financial Information. The combined/consolidated financial
---------------------
statements included in the Financial Information fairly present, in conformity
with GAAP, the financial position of the Borrowers and of the Operating
Partnership. Since the date of the most recent balance sheet preceding the
Closing Date included in such financial statements, there has been no material
adverse change in the business, financial position or results of operation of
the Borrowers and their Subsidiaries, taken as a whole, or of the Trust and the
Operating Partnership, taken as a whole.
4.10. Pending and Threatened Litigation. There is no action, suit or
---------------------------------
proceeding pending against, or to the knowledge of the Borrowers threatened
against or affecting, any Borrower, Restricted Subsidiary or the Operating
Partnership before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse decision which
would reasonably be likely to have a Material Adverse Effect.
4.11. Compliance with Laws. The Properties, and the Borrowers', the
--------------------
Restricted Subsidiaries' and the Operating Partnership's use thereof and
operations thereat, comply with all applicable Legal Requirements (including,
without limitation, building and zoning ordinances and codes) and all applicable
Insurance Requirements, except for such noncompliance as would not have a
Material Adverse Effect. None of the Borrowers, the Restricted Subsidiaries or
the Operating Partnership is in default or violation of any order, writ,
injunction, decree or demand of any Governmental Authority, except as would not
have a Material Adverse Effect.
4.12. Liens; Other Properties. The Borrowers, the Restricted
-----------------------
Subsidiaries and the Operating Partnership have good and marketable title to the
Properties and all related personal property free and clear of all Liens and
other adverse claims of any nature, except for Permitted Liens and matters that
would not result in a Material Adverse Effect. Except for the
36
Properties, none of the Borrowers, the Restricted Subsidiaries or the Operating
Partnership owns any real estate or other material assets.
4.13. Material Agreements. None of the Borrowers, the Restricted
-------------------
Subsidiaries or the Operating Partnership is in default under any contract,
lease, loan agreement, indenture, mortgage, security agreement or other material
agreement or obligation to which it is a party or by which any of its properties
is bound, except for such defaults as could not result in a Material Adverse
Effect.
4.14. Taxes. Each Borrower, each Restricted Subsidiary and the
-----
Operating Partnership has filed, or caused to be filed, all material tax returns
(federal, state, local and foreign) required to be filed and paid all amounts of
taxes shown thereon to be due (including interest and penalties) and has paid
all other material taxes, fees, assessments and other governmental charges
(including mortgage recording taxes, documentary stamp taxes and intangible
taxes) owing (or necessary to preserve any Liens under the Loan Documents in
favor of the Collateral Agent), by it, except as would not be reasonably likely
to have a Material Adverse Effect. At the Closing Date, (i) neither Borrower is
aware of any proposed tax assessments against it or any of its Subsidiaries or
against the Operating Partnership and (ii) no extension of time for assessment
or payment by either Borrower of any federal, state or local tax is in effect,
except as would not be reasonably likely to have a Material Adverse Effect.
4.15. Government Regulation. None of the Borrowers, the Restricted
---------------------
Subsidiaries or the Operating Partnership is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, or the
Interstate Commerce Act, each as amended. In addition, none of the Borrowers,
the Restricted Subsidiaries or the Operating Partnership is (i) an "investment
company" registered or required to be registered under the Investment Company
Act of 1940, as amended, or an entity controlled by such a company, or (ii) a
"holding company", or a "Subsidiary company" of a "holding company" or an
"affiliate" of a "holding company," or of a "Subsidiary" or a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
4.16. No Bankruptcy Filing. None of the Borrowers, the Restricted
--------------------
Subsidiaries or the Operating Partnership is contemplating either the filing of
a petition by it under any state or federal bankruptcy or insolvency laws or the
liquidation pursuant to any such laws of all or a major portion of its assets or
property. Neither Borrower has knowledge of any Person contemplating the filing
of any such petition against it, against any Restricted Subsidiary or against
the Operating Partnership.
4.17. Other Debt. Other than the Permitted Debt, none of the
----------
Borrowers, the Restricted Subsidiaries or the Operating Partnership has
outstanding any Debt. The provisions of the Permitted Debt do not preclude the
incurrence by any Borrower or Restricted Subsidiary of any Debt, except as set
forth in Schedule 5.
----------
4.18. Condemnation. Except as may have been disclosed to the
------------
Administrative Agent prior to the Commitment Date, no Taking has been commenced
or, to Borrower's actual knowledge, is contemplated with respect to all or any
material portion of any Property or for the
37
relocation of roadways providing access to any Property, except as would not be
reasonably likely to have a Material Adverse Effect.
4.19. Utilities and Public Access. The following statements are
---------------------------
accurate with respect to each Property except to the extent their being
inaccurate is not reasonably likely to have a Material Adverse Effect:
(i) such Property has adequate rights of access to public ways and
is served by water, electric, sewer, sanitary sewer and storm drain
facilities;
(ii) all public utilities necessary to the continued use and
enjoyment of such Property as presently used and enjoyed are located in the
public right-of-way abutting the premises or in areas ("Easement Areas")
--------------
that are the subject of access easement agreements which benefit such
Property;
(iii) all such utilities are connected so as to serve such Property
without passing over other property other than Easement Areas; and
(iv) all roads necessary for the full utilization of such Property
for its current purpose have been completed and dedicated to public use and
accepted by all Governmental Authorities or are the subject of access
easements for the benefit of such Property.
4.20. Environmental Matters.
---------------------
(a) Each Property is in compliance with all applicable Environmental
Laws (which compliance includes, but is not limited to, the possession by
the applicable Borrower or Restricted Subsidiaries of all environmental,
health and safety Permits required in connection with the ownership and
operation of the Properties under all Environmental Laws) except where the
failure to comply with such laws or to possess such Permits is not
reasonably likely to result in a Material Adverse Effect.
(b) There is no Environmental Claim pending or, to the actual
knowledge of the Borrowers and the Restricted Subsidiaries, threatened,
except as is not reasonably likely to result in a Material Adverse Effect.
(c) To the Borrowers' knowledge, there have not been and are no past
or present Releases of any Hazardous Substance affecting any Property that
is reasonably likely to form the basis of any Environmental Claim, except
in each case as is not reasonably likely to result in a Material Adverse
Effect.
(d) Without limiting the generality of the foregoing, there is not
present at, on, in or under any Property, PCB-containing equipment,
asbestos or asbestos containing materials, underground storage tanks or
surface impoundments for Hazardous Substances, lead in drinking water
(except in concentrations that comply with all Environmental Laws), or
lead-based paint, except in each case as is not reasonably likely to result
in a Material Adverse Effect.
38
(e) Other than Permitted Liens, no Liens are presently recorded with
the appropriate land records under or pursuant to any Environmental Law
with respect to any Property and, to Borrower's actual knowledge, no
Governmental Authority has been taking or is in the process of taking any
action to subject any Property to Liens (other than Permitted Liens) under
any Environmental Law, except in each case as is not reasonably likely to
result in a Material Adverse Effect.
4.21. Assessments. There are no pending or, to Xxxxxxxx's knowledge,
-----------
proposed special or other assessments for public improvements affecting any
Property, nor are there any contemplated improvements to any Property that may
result in such special or other assessments, except in each case as are not
reasonably likely to result in a Material Adverse Effect.
4.22. No Joint Assessment; Separate Lots. Except for matters as are
----------------------------------
not reasonably likely to have a Material Adverse Effect, none of the Borrowers,
the Restricted Subsidiaries or the Operating Partnership has suffered, permitted
or initiated the joint assessment of any Property (i) with any other real
property constituting a separate tax lot, and (ii) with any portion of any
Property which may be deemed to constitute personal property, or any other
procedure whereby the lien of any taxes which may be levied against such other
real property or personal property shall be assessed or levied or charged to any
of the Properties as a single Lien, and no Property includes any real property
that is part of a tax lot that includes (1) all or any portion of another
Property, or (2) any property that is not owned by a Borrower or Restricted
Subsidiary.
4.23. No Prior Assignment. Except for Permitted Liens, there are no
-------------------
prior assignments of any Revenues of any Borrower, Restricted Subsidiary or the
Operating Partnership.
4.24. Permits; Certificates of Occupancy. The Borrowers and/or the
----------------------------------
applicable Restricted Subsidiaries and/or the Operating Partnership have
obtained all Permits necessary for the use and operation of each Property,
except where the failure to obtain such Permits is not reasonably likely to have
a Material Adverse Effect.
4.25. Physical Condition. To Borrower's actual knowledge, except for
------------------
matters that would not be reasonably likely to have a Material Adverse Effect,
each Property is free of structural defects and all building systems contained
therein are in good working order, subject to ordinary wear and tear.
4.26. ERISA. None of the Borrowers or the Trust, nor any ERISA
-----
Affiliate of any of the Borrowers or the Trust, has incurred or could be subject
to any liability under Title IV or Section 302 of ERISA or Section 412 of the
Code or maintains or contributes to, or is or has been required to maintain or
contribute to, any employee benefit plan (as defined in Section 3(3) of ERISA)
subject to Title IV or Section 302 of ERISA or Section 412 of the Code. The
consummation of the transactions contemplated hereby will not constitute or
result in any non-exempt prohibited transaction under Section 406 of ERISA,
Section 4975 of the Code or substantially similar provisions under federal,
state or local laws, rules or regulations.
39
4.27. Labor Matters. None of the Borrowers or the Restricted
-------------
Subsidiaries is a party to any collective bargaining agreements.
4.28. Operating Partnership Liability Amount. No agreements to which
--------------------------------------
the Operating Partnership or the Trust is a party restrict the amount of Debt
that may be incurred by the Operating Partnership and the Trust except as set
forth in Schedule 5, and none of such agreements would preclude the Operating
----------
Partnership and the Trust from borrowing hereunder in an amount equal to the
Operating Partnership Liability Amount.
4.29. Loan Reduction Amount. The Loan Reduction Amount is the amount
---------------------
specified in the Loan Reduction Amount Certification delivered to the
Administrative Agent on the Closing Date or on the date of the Additional
Advance, as applicable.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
5.1. Trust Merger. The Borrowers shall cause the Trust Merger to
------------
occur as soon as reasonably possible following the Closing Date. Upon the
consummation of the Trust Merger, the Borrowers shall cause the Operating
Partnership to borrow the Operating Partnership Advance pursuant to Section
-------
1.1(c).
------
5.2. Existence; Compliance with Legal Requirements; Insurance;
---------------------------------------------------------
Certain Notices. The Borrowers shall (and shall cause the Restricted
---------------
Subsidiaries and the Operating Partnership to) do or cause to be done all things
necessary to preserve, renew and keep in full force and effect Borrowers' and
the Restricted Subsidiaries' and the Operating Partnership's corporate, limited
partnership or limited liability company existence (as applicable) and all
rights, licenses, Permits, franchises and other agreements necessary for the
continued use and operation of their businesses, and shall comply with all Legal
Requirements and Insurance Requirements applicable to them or their Properties,
and shall comply with all obligations under the Leases, except for defaults in
respect of this sentence which, in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect. In addition, and whether or not
required by law, the Borrowers at all times shall (and shall cause the
Restricted Subsidiaries and the Operating Partnership at all times to) maintain,
preserve and protect all of Borrowers' and the Restricted Subsidiaries' and the
Operating Partnership respective property to the extent necessary for the
continued conduct of their respective businesses and maintain the Properties in
a good condition except for reasonable wear and use, and from time to time make,
or cause to be made, all necessary repairs, renewals, replacements, betterments
and improvements thereto, except for defaults in respect of this sentence which,
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect. From and after the Merger, the Borrowers shall cause the Trust to
maintain its status as a real estate investment trust for tax purposes.
5.3. Impositions and Other Claims. The Borrowers shall (and shall
----------------------------
cause the Restricted Subsidiaries and the Operating Partnership to) pay and
discharge, or cause to be paid or discharged, all taxes, assessments and
governmental charges levied upon any of the Borrowers, the Restricted
Subsidiaries, their income or their assets as and when such taxes,
40
assessments and charges are due and payable (including, without limitation, all
Impositions), as well as all lawful claims for labor, materials and supplies or
otherwise, subject to any rights to contest contained in the definition of
Permitted Liens. The Borrowers shall (and shall cause the Restricted
Subsidiaries and the Operating Partnership to) file all federal, state and local
tax returns and other reports that they are required by law to file, unless a
valid extension has been filed with respect thereto.
5.4. Litigation. The Borrowers shall give prompt written notice to
----------
the Administrative Agent of any litigation or governmental proceedings pending
or threatened (in writing) against any Borrower or Restricted Subsidiary or the
Operating Partnership which is reasonably likely to have a Material Adverse
Effect.
5.5. General Indemnity. The Borrowers shall indemnify, reimburse,
-----------------
defend and hold harmless the Administrative Agent, the Collateral Agent and the
Lenders and their respective officers, directors, employees and agents
(collectively, the "Indemnified Parties") for, from and against any and all
-------------------
liabilities, obligations, losses, damages, penalties, assessments, actions, or
causes of action, judgments, suits, claims, demands, out-of-pocket costs and
expenses (including, without limitation, reasonable attorneys' fees and legal
expenses whether or not suit is brought and settlement costs) and disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Indemnified Parties, in any way relating to or arising out
of the making or holding or enforcement of the Loan by the Lenders or the
administration of the Loan Documents to the extent resulting, directly or
indirectly, from any claim made (whether or not in connection with any legal
action, suit, or proceeding) by or on behalf of any Person other than the
parties to this Agreement; provided, however, that no Indemnified Party shall
-------- -------
have the right to be indemnified hereunder for its own fraud, bad faith, gross
negligence or willful misconduct. The provisions of and undertakings and
indemnification set forth in this Section 5.5 shall survive the satisfaction and
-----------
payment in full of the Indebtedness and termination of this Agreement.
5.6. Access to Property. The Borrowers shall permit agents,
------------------
representatives and employees of the Administrative Agent to inspect the
Properties or any part thereof, and/or the books and records of the Borrowers,
the Restricted Subsidiaries and the Operating Partnership, at such reasonable
times as may be requested by the Administrative Agent upon reasonable advance
notice; provided, however, that so long as no Event of Default shall be
continuing, no more than one such visit shall be conducted in any calendar
quarter.
5.7. Notice of Default. The Borrowers shall promptly advise the
-----------------
Administrative Agent of any change in the Borrowers' financial condition which
is reasonably likely to have a Material Adverse Effect, or of the occurrence to
the best of the Borrowers' knowledge of any Default or of any Event of Default.
5.8. Cooperate in Legal Proceedings. The Borrowers shall cooperate
------------------------------
fully with the Administrative Agent and the Lenders as reasonably requested by
them with respect to any proceedings before any Governmental Authority which may
in any way affect the rights of the Administrative Agent or any Lender hereunder
or under any of the Loan Documents and, in connection therewith, the
Administrative Agent and any Lender may, at its election, participate or
designate a representative to participate in any such proceedings.
41
5.9. Perform Loan Documents. The Borrowers shall observe, perform and
----------------------
satisfy and cause the Restricted Subsidiaries to observe, perform and satisfy
all the terms, provisions, covenants and conditions required to be observed,
performed or satisfied by the Borrowers and the Restricted Subsidiaries, and
shall pay or cause to be paid when due all costs, fees and expenses required to
be paid by them and the Restricted Subsidiaries, in each case under the Loan
Documents.
5.10. Insurance Benefits. The Borrowers shall cooperate with the
------------------
Administrative Agent and the Collateral Agent in obtaining for the Collateral
Agent and the Lenders the benefits of any Insurance Proceeds lawfully or
equitably payable to the Collateral Agent and the Lenders in connection with the
Properties owned by the Borrowers or the Restricted Subsidiaries. The
Administrative Agent and the Collateral Agent shall be reimbursed for any
out-of-pocket expenses reasonably incurred in connection therewith (including
reasonable attorneys' fees and disbursements) out of such Insurance Proceeds or
by the Borrowers.
5.11. Further Assurances. The Borrowers shall, at their sole cost and
------------------
expense, from time to time as reasonably requested by the Collateral Agent,
execute, acknowledge, record, register, file and/or deliver to the Collateral
Agent such other instruments, agreements, certificates and documents as the
Administrative Agent may reasonably request to evidence, confirm, perfect and
maintain the Liens granted or required to be granted by the Loan Documents, and
shall perform all additional acts reasonably requested by the Administrative
Agent which are necessary to effect the purposes of the foregoing, and shall
cause the Restricted Subsidiaries to comply with the foregoing requirements and
their other obligations under this Agreement as if they were parties hereto.
5.12. Financial Reporting. Borrower will furnish, or cause to be
-------------------
furnished, to the Administrative Agent:
(a) Annual Financial Statements. As soon as available and in any
---------------------------
event within 120 days after the close of each fiscal year, a
combined/consolidated balance sheet of the Borrowers and the Restricted
Subsidiaries and the Operating Partnership as at the end of such year, together
with related combined/consolidated statements of income and members capital for
such fiscal year, examined by independent certified public accountants of
recognized national standing whose opinion shall be to the effect that such
financial statements have been prepared in accordance with GAAP applied on a
consistent basis (except for changes with which such accountants concur) and
shall not be qualified as to the scope of the audit or as to the status of
Borrower as a going concern. Together with Xxxxxxxx's annual financial
statements, Borrower shall furnish to Lender an internally prepared operating
statement, on both an aggregate and a Subsidiary-by-Subsidiary basis.
(b) Monthly Reports. Within 45 days after the end of each calendar
---------------
month, the Borrowers will provide a monthly reporting package containing monthly
and year-to-date operating statements, updated rent rolls and updated occupancy
statements, each in form reasonably agreed by the Borrowers and the
Administrative Agent from time to time, together with such other information as
the Administrative Agent shall reasonably request.
42
5.13. [Intentionally Omitted].
---------------------
5.14. Conduct of Business. The Borrowers shall operate or cause to be
-------------------
operated each Property at all times in a manner consistent with at least the
standard of operation of the Properties as of the Closing Date.
5.15. Assignment or Participation of Note. Subject to Section 8.9, in
----------------------------------- -----------
the event that any Lender notifies the Borrowers that a sale of any of the Notes
or any portion thereof (an "Assignment"), or a sale of a participation interest
----------
in any of the Notes (a "Participation"), to another party is desirable, then,
-------------
subject to Section 8.9, the Borrowers agree reasonably to cooperate with the
-----------
Administrative Agent and such Lender in order to effectuate such Assignment or
Participation.
5.16. Insurance.
---------
(a) The Borrowers shall obtain and maintain (or cause the Restricted
Subsidiaries to obtain and maintain, as applicable) with respect to each
Property for the mutual benefit of the Borrowers, the Restricted Subsidiaries
and the Collateral Agent for the benefit of the Lenders at all times, the
following policies of insurance:
(i) insurance against loss or damage by standard perils included
within the classification "All Risks of Direct Physical Loss". Such
insurance shall be in an aggregate amount equal to the then full
replacement cost of such Property and fixtures (without deduction for
physical depreciation); shall have reasonable and customary deductibles
(but in any event not in excess of $100,000); shall be paid annually (or in
such other frequency as may be approved by the Administrative Agent) in
advance (with payment made prior to the date on which coverage would be
cancelled in the absence of such payment); shall contain an endorsement
providing for the cost of repair or replacement without deduction for
depreciation; and shall include an ordinance or law coverage endorsement
containing Coverage A: "Loss Due to Operation of Law" (with a minimum
liability equal to replacement cost or such lesser amount as is reasonably
agreed by the Administrative Agent), Coverage B: "Demolition Cost" and
Coverage C: "Increased Cost of Construction" coverages;
(ii) flood insurance, if commercially available, if any portion of
such Property is located in an area identified by the Federal Emergency
Management Agency as a "100 year flood plain", in an amount equal to the
full replacement cost or such other amount as shall be approved by the
Administrative Agent;
(iii) commercial general liability insurance which provides coverage
for bodily injury, property damage, personal and advertising injury, and
also including contractual liability coverage. Such policy shall provide
minimum limits per occurrence of not less than $1,000,000 with not less
than a $2,000,000 general aggregate for any policy year, with no deductible
or self-insured retention in excess of $100,000 per annum. In addition, at
least $100,000,000 excess and/or umbrella liability insurance shall be
obtained and maintained;
43
(iv) rental loss and/or business interruption insurance in an
annual aggregate amount equal to the estimated gross revenues from such
Property, such insurance to cover the period commencing on the date of any
Casualty or Condemnation and ending 18 months following the date on which
such Property has been restored, as reasonably determined by the applicable
insurer. The amount of such insurance shall be increased from time to time
as and when the gross revenues from such Property increase;
(v) insurance against loss or damage from explosion of steam
boilers, air conditioning equipment, high pressure piping, machinery and
equipment, pressure vessels or similar apparatus now or hereafter installed
in any of the Improvements (without exclusion for explosions) and insurance
against loss of occupancy or use arising from breakdown, in an amount equal
to the lesser of replacement cost or $2,000,000;
(vi) worker's compensation insurance with respect to all employees
as and to the extent required by any Governmental Authority or Legal
Requirement and employer's liability coverage of at least $1,000,000;
(vii) during any period of repair or restoration, builder's "all
risk" insurance in an amount equal to not less than the full insurable
value of such Property against such risks (including fire and extended
coverage and collapse of the Improvements to agreed limits) as the
Administrative Agent may request, in form and substance acceptable to the
Administrative Agent;
(viii) if required by the Administrative Agent, earthquake insurance
in an amount equal to a multiple that is between 1.5 and 2.0, inclusive, as
determined by the Administrative Agent based on its review of the
applicable seismic reports, times the probable maximum loss of such
Property, as reasonably determined by the Administrative Agent, or such
lesser amount as shall be agreed by the Administrative Agent, with a
deductible reasonably approved by the Administrative Agent;
(ix) if required by the Administrative Agent, windstorm insurance
in an amount equal to the probable maximum loss of such Property, and if
windstorm is not covered under the all risk deductible, then the deductible
for windstorm insurance shall be reasonably approved by the Administrative
Agent; and
(x) such other insurance as may from time to time be reasonably
requested by the Administrative Agent, if and to the extent available at
commercially reasonable rates.
(b) All policies of insurance (the "Policies") required pursuant
--------
to this Section 5.15:
------------
(i) shall be issued by one or more primary insurers having a
claims-paying ability of at least "AA-" or its equivalent by each of the
Rating Agencies (A- or better for earthquake insurance), or by a syndicate
of insurers through which at least 75% of the coverage (if there are 4 or
fewer members of the syndicate) or at least 60% of the coverage (if there
are 5 or more members of the syndicate) is with carriers having such
claims-paying ability ratings (provided that at least 90% of the coverage
--------
shall be with
44
carriers having a claims-paying ability of at least "A-" or the equivalent
and all such carriers shall have claims-paying ability ratings of not less
than "BBB-");
(ii) shall be maintained throughout the term of the Loan without
cost to any Lender or Agent;
(iii) with respect to property policies, shall contain a standard
noncontributory mortgagee clause (to the extent applicable), and shall name
the Collateral Agent on behalf of the Lenders, and its successors and
assigns, as first mortgagee and loss payee (to the extent applicable);
(iv) with respect to liability policies, shall name the Collateral
Agent on behalf of the Lenders, and its successors and assigns, as
additional insureds;
(v) with respect to rental or business interruption insurance
policies, shall name the Collateral Agent on behalf of the Lenders, and its
successors and/or assigns, as loss payee;
(vi) shall contain an endorsement providing that no party shall be a
co-insurer under said Policies unless agreed otherwise by the
Administrative Agent with respect to the Borrowers' earthquake insurance
coverage, and that the Administrative Agent shall receive at least 30 days'
prior written notice of any change in coverage and/or cancellation;
(vii) shall contain an endorsement providing that no act or
negligence of the applicable Borrower or Restricted Subsidiary of a Tenant
or other occupant shall affect the validity or enforceability of the
insurance insofar as a mortgagee is concerned;
(viii) shall contain a waiver of subrogation against the Lenders and
the Agents; and
(ix) shall contain coverage for terrorism, to the extent policies
without a terrorism exclusion (or separate terrorism coverage) are
customarily maintained by prudent owners of institutional-quality real
estate in the United States or are otherwise available at commercially
reasonable rates.
Any policies of insurance maintained by the applicable Borrower or Restricted
Subsidiary but not required hereunder shall comply with clauses (iii), (iv),
(v), (vi) and (viii) above.
(c) The Borrowers shall pay or cause to be paid the premiums for
all Policies as the same become due and payable. Certificates of such Policies
(on XXXXX Form 27 or equivalent, with respect to property insurance, and on
XXXXX Form 25 or equivalent, with respect to liability insurance) shall be
delivered to the Administrative Agent promptly upon request (and, promptly after
request following the occurrence of a Casualty the proceeds of which are
expected to exceed $50 million, copies of any Policies related to the Casualty
loss in question, certified as true and correct by the Borrowers, shall be
delivered to the Administrative Agent). Not later than 30 days prior to the date
on which coverage would be cancelled in the absence of payment of the applicable
premiums, the Borrowers shall deliver to the
45
Administrative Agent evidence, reasonably satisfactory to the Administrative
Agent, of its renewal.
(d) The foregoing requirements contained in this Section 5.16 shall
------------
not apply to the Operating Partnership, provided that as soon as practicable
--------
after the Trust Merger, the Operating Partnership and its Restricted
Subsidiaries shall obtain insurance coverage that complies with such
requirements (and until the Operating Partnership and its Restricted
Subsidiaries obtain such insurance coverage, they shall maintain insurance
coverage substantially in accordance with their current practice).
5.17. Casualty and Condemnation.
-------------------------
(a) In the event of any Casualty or Taking with respect to any
Property the Loss Proceeds from which are reasonably expected to exceed $10
million, the Borrowers shall give prompt notice thereof to the Administrative
Agent. At the instruction of the Administrative Agent, the Collateral Agent may
(x) jointly with the Borrowers and/or the applicable Restricted Subsidiary
and/or the Operating Partnership settle and adjust any claims, (y) after the
occurrence and during the continuation of an Event of Default, settle and adjust
any claims without the consent or cooperation of the Borrowers, any Restricted
Subsidiary or the Operating Partnership, or (z) allow the applicable Borrower
and/or the applicable Restricted Subsidiary and/or the Operating Partnership to
settle and adjust any claims; provided, that if no Event of Default has occurred
--------
and is continuing, the Borrowers may settle and adjust claims with respect to a
Property if such claims are not in excess of $10 million for such Property and
such settlement or adjustment is carried out in a competent and timely manner,
and the Collateral Agent shall be and hereby is authorized to collect and
receipt for any and all Loss Proceeds except to the extent such Loss Proceeds
attributable to such Casualty or Taking is less than $10 million. The reasonable
out-of-pocket expenses incurred by the Collateral Agent in the adjustment and
collection of Loss Proceeds shall become part of the Indebtedness and shall be
reimbursed by Xxxxxxxx to the Administrative Agent upon demand therefor.
(b) If (x) any Taking or Casualty occurs with respect to a Property
owned by Borrower or a Restricted Subsidiary as to which the Loss Proceeds do
not exceed $15 million or as to which, in the judgment of the Administrative
Agent (which judgment will not be unreasonably withheld or delayed), the
affected Property can be restored prior to the expiration of business
interruption insurance with respect thereto, and prior to the Maturity Date, to
an economic unit not less valuable than existed prior to the Taking or Casualty,
or (y) the Administrative Agent otherwise elects to allow Borrower to restore
the affected Property, then, provided that no Event of Default shall have
occurred and be then continuing, the Loss Proceeds (after reimbursement of any
reasonable expenses incurred by the Administrative Agent or the Lenders in
connection therewith) after receipt thereof by the Collateral Agent shall be
made available by the Collateral Agent, as instructed by the Administrative
Agent, to pay or to reimburse the applicable Borrower or Restricted Subsidiary
or the Operating Partnership for the cost of restoring, repairing, replacing or
rebuilding the affected Property or part thereof subject to the Taking or
Casualty, as provided for below; and the Borrowers hereby covenant and agree to
commence as promptly as practicable and diligently to prosecute such restoring,
repairing, replacing or rebuilding; provided always, that the Borrowers shall
-------- ------
pay all costs of such restoring, repairing, replacing or rebuilding in excess of
the net proceeds of insurance made available
46
pursuant to the terms hereof (the "Deficient Amount") and, if requested by the
----------------
Administrative Agent, shall deposit an amount equal to the reasonably
anticipated Deficient Amount into the Loss Proceeds Account.
(c) If the Loss Proceeds from any Casualty or Taking exceed $10
million, such proceeds shall be immediately deposited into the Loss Proceeds
Account. If such proceeds are to be made available for restoration pursuant to
Section 5.17(b), such proceeds shall be applied to the cost of restoring,
---------------
repairing, replacing or rebuilding the Property subject to the Casualty or
Taking, in the manner set forth below.
(d) If the Loss Proceeds (after reimbursement of any reasonable
expenses incurred by the Agents in connection therewith), if any, are to be made
available to the Borrowers pursuant to Section 5.17(b) for the restoring,
---------------
repairing, replacing or rebuilding of a Property, the Borrowers hereby covenant
to restore, repair, replace or rebuild the same to be of substantially the same
character as prior to such damage or destruction, all to be effected in
accordance with applicable Legal Requirements and plans and specifications
approved in advance by the Administrative Agent, such approval not to be
unreasonably withheld. The Borrowers shall pay all costs (and if required by the
Administrative Agent, the Borrowers shall deposit the total thereof in the Loss
Proceeds Account in advance) of such restoring, repairing, replacing or
rebuilding in excess of the Loss Proceeds made available pursuant to the terms
hereof.
(e) In the event that the Borrowers are entitled to reimbursement out
of proceeds in the Loss Proceeds Account, such proceeds shall be disbursed at
the Borrowers' request (but not more frequently than monthly) upon the
Administrative Agent being furnished with (i) evidence reasonably satisfactory
to it of the estimated cost of completion of the restoration, repair,
replacement and rebuilding, (ii) funds, or assurances reasonably satisfactory to
the Administrative Agent that such funds are available, sufficient in addition
to the Loss Proceeds to complete the proposed restoration, repair, replacement
and rebuilding, and (iii) if the cost of the work would exceed $10 million, such
architect's certificates, waivers of lien, contractor's sworn statements, title
insurance endorsements, bonds, plats of survey and such other evidences of cost,
payment and performance as the Administrative Agent may reasonably require; and
the Administrative Agent may, in any event, require that all plans and
specifications for restoration, repair, replacement and rebuilding reasonably
estimated by the Administrative Agent to exceed $10 million be submitted to and
approved by the Administrative Agent prior to commencement of work. No payment
made prior to the substantial completion of the restoration, repair, replacement
and rebuilding of a Property shall exceed ninety percent (90%) of the value of
the work performed from time to time; funds other than Loss Proceeds shall be
disbursed prior to disbursement of such Loss Proceeds, and at all times, the
undisbursed balance remaining in the Loss Proceeds Account, together with any
additional funds irrevocably and unconditionally deposited therein or
irrevocably and unconditionally committed for that purpose, shall be at least
sufficient in the reasonable judgment of the Administrative Agent to pay for the
cost of completion of the restoration, repair, replacement or rebuilding, free
and clear of all Liens (other than Permitted Liens).
47
5.18. ERISA. Each of the Borrowers will do, or cause to be done, all
-----
things necessary to ensure that neither such Borrower, the Trust, the Operating
Partnership nor any of the Restricted Subsidiaries will be deemed to hold Plan
Assets at any time.
ARTICLE VI
NEGATIVE COVENANTS
------------------
Each of the Borrowers covenants and agrees that, until payment in full
of the Indebtedness, it will not do directly or indirectly, or permit to be done
by any of the Restricted Subsidiaries, any of the following:
6.1. Liens on the Properties. Subject to the provisions set forth in
-----------------------
Section 1.2, incur, create, assume, or permit to exist, any Lien with respect to
-----------
any Property or any other property, income or profits of it or any Restricted
Subsidiary, other than Permitted Liens, or any Lien on any equity interest in a
Subsidiary.
6.2. Ownership and Transfer. Transfer any Property other than in
----------------------
compliance with Section 1.7, or Transfer any whole or partial interest in the
-----------
equity of any Subsidiary of any Borrower or Restricted Subsidiary.
6.3. Debt. Incur, create, assume, or be liable in any manner with
----
respect to any Debt other than Permitted Debt.
6.4. Dissolution; Merger or Consolidation. Dissolve, terminate,
------------------------------------
liquidate, merge with or consolidate into another Person or acquire
substantially all of the assets of any Person, except for the Trust Merger.
6.5. Change in Business. Make any material change in the scope or
------------------
nature of its business or operations.
6.6. Debt Cancellation. Cancel or otherwise forgive or release any
-----------------
material claim or debt owed to it by any Person, except for adequate
consideration or in the ordinary course of its business.
6.7. Affiliate Transactions. Enter into, or be a party to, any
----------------------
transaction with any Affiliate of a Borrower, except on terms which are as
favorable to the applicable Borrower or Restricted Subsidiary as would be
obtained in a comparable arm's length transaction with an unrelated third party.
6.8. Misapplication of Funds. Distribute any Net Liquidation Proceeds
-----------------------
or Loss Proceeds in violation of the provisions of this Agreement or distribute
any Revenues to equityholders (other than to the Borrowers) during the
continuance of an Event of Default.
48
6.9. ERISA.
-----
(a) Maintain or contribute to, or agree to maintain or contribute
to, any employee benefit plan subject to Title IV or Section 302 of ERISA or
Section 412 of the Code.
(b) Engage in any non-exempt prohibited transaction under Section
406 of ERISA, Section 4975 of the Code, or substantially similar provisions
under federal, state or local laws, rules or regulations or in any transaction
that would cause any obligation or action taken or to be taken hereunder (or the
exercise by the Lender of any of its rights under this Agreement or any other
Loan Document) to be a non-exempt prohibited transaction under such provisions.
6.10. Advances and Investments. Lend money or make advances to any
------------------------
Person, or purchase or acquire any stock or securities of, or any other interest
in, any Person (other than the acquisition of equity interests in the Trust in
connection with the Trust Merger), or acquire any obligations of, or make any
capital contribution to, any Person, except, so long as no Event of Default is
continuing, for equity investments in and capital contributions to Restricted
Subsidiaries which are parties to the Omnibus Subsidiary Guarantee.
6.11. New Subsidiaries. Create or own an interest in any Subsidiary
----------------
unless (i) such Subsidiary is a Restricted Subsidiary, (ii) such Subsidiary has
become a party to, and is bound by, the Omnibus Subsidiary Guarantee, and (iii)
all of the equity of such Subsidiary has been pledged to the Collateral Agent on
behalf of the Lenders to secure the obligations of the owner of such equity
pursuant to the Loan Documents, such pledge to be in form and substance
reasonably satisfactory to the Administrative Agent.
ARTICLE VII
EVENTS OF DEFAULT
-----------------
7.1. Event of Default. The occurrence of any one or more of the
-----------------
following events shall be an "Event of Default" hereunder:
----------------
(i) if the Borrowers fail to pay on any Payment Date the aggregate
accrued and unpaid interest then due hereunder and such failure continues
for two Business Days; or if the Borrowers fail to pay on any Payment Date
any amount of principal then due hereunder (it being understood that the
Notes are all cross-defaulted for all purposes hereunder);
(ii) if the Borrowers fail to pay any amount payable pursuant to this
Agreement or any other Loan Document when due and payable in accordance
with the provisions hereof or thereof, as the case may be (other than as
set forth in clause (i) above), or fail to make any required deposit in the
Loss Proceeds Account, and such failure continues for five Business Days
beyond the due date thereof;
(iii) if any representation or warranty made herein or in any other
Loan Document shall be false in any material respect as of the date such
representation or warranty was made or deemed to be made;
49
(iv) if a receiver, liquidator or trustee shall be appointed for
any Borrower or Restricted Subsidiary, or if Borrower or any
Restricted Subsidiary shall make an assignment for the benefit of
creditors or be adjudicated a bankrupt or insolvent, or if any
petition for bankruptcy, reorganization or arrangement pursuant to
federal bankruptcy law, or any similar federal or state law, shall be
filed by or against, consented to, or acquiesced in by, any Borrower
or any such Restricted Subsidiary or if any proceeding for the
dissolution or liquidation of any Borrower or Restricted Subsidiary
shall be instituted; provided, however, that if such appointment,
-------- -------
adjudication, petition or proceeding is involuntary and not consented
to by any Borrower or Restricted Subsidiary, as the case may be, upon
the same not being discharged, stayed or dismissed within 60 days;
(v) if any Borrower or Restricted Subsidiary is in default of
any provision of Article VI or Section 5.18;
---------- ------------
(vi) if any Borrower or Restricted Subsidiary shall continue to
be in Default under any of the other terms, covenants or conditions of
this Agreement, any Note or any of the other Loan Documents for 30
days after notice to the Borrowers from the Administrative Agent,
provided, however, that if such Default is susceptible of cure but
-------- -------
cannot reasonably be cured within such 30-day period and the Borrowers
shall have commenced to cure such Default within such 30-day period
and thereafter diligently and expeditiously proceeds to cure the same,
such 30-day period shall be extended for such time as is reasonably
necessary for the Borrowers in the exercise of due diligence to cure
such Default, but in no event shall such cure period exceed 90 days
after the original notice from the Administrative Agent;
(vii) if one or more final, nonappealable judgments or decrees
shall be entered against any Borrower or Restricted Subsidiary for
which the creditors have recourse against any Borrower or Restricted
Subsidiary personally of $5,000,000 or more in the aggregate for all
such judgments and decrees collectively (for purposes of this
paragraph, there shall be disregarded that portion of any judgment to
the extent it is reasonably anticipated that such Borrower or
Restricted Subsidiary will be reimbursed therefor from the proceeds of
insurance);
(viii) if any events or conditions shall occur after the Closing
(a) which result in the acceleration of Debt of any Borrower or
Restricted Subsidiary ("Actual Accelerated Debt") and/or (b) which,
-----------------------
despite the absence of actual acceleration, would then permit the
acceleration of such Debt and, in the case of this clause (b), the
event or conditions giving rise to such permitted acceleration are not
rectified within 30 days of their onset and such Debt is not actually
accelerated during such 30-day period (any such Debt not accelerated
during such 30-day period, "Potential Accelerated Debt"); provided,
-------------------------- --------
however, that no Event of Default shall be deemed to arise under this
-------
paragraph until the aggregate principal amount of all Actual
Accelerated Debt and all Potential Accelerated Debt is $20,000,000 or
greater;
(x) if a Change of Control of any Borrower or Restricted
Subsidiary shall occur;
50
(xi) if at any time the outstanding principal balance of the
Revolving Credit Loans exceeds the Maximum Revolving Credit Loan Amount
(other than inadvertant violations of this clause (xi) that are promptly
cured); or
(xii) if the Trust Merger shall not have occurred in accordance
herewith prior to the initial Maturity Date (before giving effect to any
extensions thereof);
then, upon the occurrence of any such Event of Default and at any time
thereafter during the continuance thereof, the Administrative Agent or its
permitted successors or assigns may, by written notice to the Borrowers, in
addition to any other rights or remedies available pursuant to this Agreement,
the Notes and the other Loan Documents, at law or in equity, declare by written
notice to the Borrowers the entire Indebtedness to be immediately due and
payable whereupon the Indebtedness shall so become due and payable, and may
enforce or avail itself of any and all rights and remedies provided in the Loan
Documents and applicable law against the Borrowers, the Restricted Subsidiaries
and the Properties (including, without limitation, all rights and remedies
available at law or in equity); provided, however, that, notwithstanding the
-------- -------
foregoing, if an Event of Default specified in paragraphs 7.1(iv) shall occur,
-------
then the Notes and the entire Indebtedness shall immediately become due and
payable without the giving of any notice or other action by the Administrative
Agent or any Lender.
7.2. Remedies.
--------
(a) Upon the occurrence of an Event of Default, all or any one or
more of the rights, powers and other remedies available to the Collateral Agent
and the Lenders against the Borrowers and the Restricted Subsidiaries under this
Agreement, the Note, or any of the other Loan Documents or applicable law, at
law or in equity, shall be exercised by the Administrative Agent upon the
written request and direction of the Required Lenders at any time and from time
to time, whether or not all or any portion of the Indebtedness shall be declared
due and payable, and whether or not the Collateral Agent, the Administrative
Agent or the Lenders shall have commenced any foreclosure proceeding or other
action for the enforcement of their rights and remedies under any of the Loan
Documents with respect to all or any portion of the Collateral. Any actions
taken by the Administrative Agent for the benefit of the Lenders shall be
cumulative and concurrent and may be pursued independently, singly,
successively, together or otherwise, at such time and in such order as
Administrative Agent shall be directed by the Required Lenders or, absent such
direction, as Administrative Agent may determine in its sole discretion, to the
fullest extent permitted by law, without impairing or otherwise affecting the
other rights and remedies of the Collateral Agent, the Administrative Agent or
the Lenders permitted by law, equity or as set forth herein or in the other Loan
Documents.
(b) In the event of the foreclosure or other action by the
Administrative Agent, the Collateral Agent or the Lenders to enforce their
remedies in connection with all or any portion of the Properties, the
Administrative Agent or the Lenders shall apply all Net Liquidation Proceeds
received to repay the Indebtedness in accordance with Section 1.8, the
-----------
Indebtedness shall be reduced to the extent of such Net Liquidation Proceeds and
the remaining portion of the Indebtedness shall remain outstanding, it being
understood and agreed by the Borrowers that the Borrowers are liable for the
repayment of all the Indebtedness; provided, however, that at Administrative
-------- -------
Agent's election, the Notes shall be deemed to have been
51
accelerated only to the extent of the Net Proceeds actually received by the
Lenders with respect to the Properties and applied in reduction of the
Indebtedness.
(c) Upon the occurrence of any Event of Default, the Administrative Agent
and/or the Collateral Agent may for the benefit of the Lenders, but without any
obligation to do so and without notice to or demand on the Borrowers and without
releasing the Borrowers from any obligation hereunder, take any action to cure
such Event of Default. The Administrative Agent and the Collateral Agent are
each authorized to enter upon any or all of the Properties owned by the
Borrowers and the Restricted Subsidiaries for such purposes or appear in,
defend, or bring any action or proceeding to protect their interests in such
Properties or to foreclose their Liens or collect the Indebtedness. The costs
and expenses incurred by the Administrative Agent and/or the Collateral Agent in
exercising rights under this paragraph (including reasonable attorneys' fees to
the extent permitted by law), with interest at the Default Rate for the period
after notice from the Administrative Agent or Collateral Agent that such costs
or expenses were incurred to the date of payment to the Administrative Agent
and/or the Collateral Agent, shall constitute a portion of the Indebtedness and
shall be due and payable to the Administrative Agent and/or the Collateral Agent
within five Business Days after demand therefor.
7.3. Remedies Cumulative. The rights, powers and remedies of the Collateral
-------------------
Agent, the Administrative Agent and the Lenders under this Agreement shall be
cumulative and not exclusive of any other right, power or remedy that any of
said Persons may have against the Borrowers and the Restricted Subsidiaries
pursuant to this Agreement or the other Loan Documents executed by or with
respect to the Borrowers, existing at law or in equity or otherwise. The
Administrative Agent's, the Collateral Agent's, and the Lenders' rights, powers
and remedies may be pursued singly, concurrently or otherwise, at such time and
in such order as any of said Persons may determine in their sole discretion. No
delay or omission to exercise any remedy, right or power accruing upon an Event
of Default shall impair any such remedy, right or power or shall be construed as
a waiver thereof, but any such remedy, right or power may be exercised from time
to time and as often as may be deemed by the Administrative Agent, the
Collateral Agent or the Administrative Agent to be expedient. A waiver of any
Default or Event of Default shall not be construed to be a waiver of any
subsequent Default or Event of Default or to impair any remedy, right or power
consequent thereon. Notwithstanding any other provision of this Agreement, the
Administrative Agent and each Lender reserves the right to seek a deficiency
judgment or preserve a deficiency claim to the extent the Administrative Agent
or such Lender deems necessary.
ARTICLE VIII
MISCELLANEOUS
8.1. Survival. This Agreement and all covenants, agreements,
--------
representations and warranties made herein and in the certificates delivered
pursuant hereto shall survive the execution and delivery of this Agreement, the
making by the Lenders of the Loan hereunder and the execution and delivery by
Borrower to the Lenders of the Note, and shall continue in full force and effect
so long as any portion of the Indebtedness is outstanding and unpaid or such
longer period as is set forth herein. Whenever in this Agreement any of the
parties hereto is
referred to, such reference shall be deemed to include the permitted successors
and permitted assigns of such party. All covenants, promises and agreements in
this Agreement contained, by or on behalf of the Borrowers, shall inure to the
benefit of Xxxxxxx and their successors and assigns. Nothing in this Agreement
or in any other Loan Document, express or implied, shall give to any Person
other than the parties and the holders of the Note, and their legal
representatives, successors and assigns, any benefit or any legal or equitable
right, remedy or claim hereunder.
8.2. Administrative Agent's and Xxxxxxx' Discretion. Whenever pursuant to
----------------------------------------------
this Agreement, the Administrative Agent or one or more Lenders exercise any
right given to it to approve or disapprove, or any arrangement or term is to be
satisfactory to the Administrative Agent or one or more Lenders, the decision of
the Administrative Agent or such Lender or Lenders to approve or disapprove or
to decide whether arrangements or terms are satisfactory or not satisfactory
shall (except as is otherwise specifically herein provided) be in the sole
discretion of the Administrative Agent or such Lender or Lenders and, if to be
made in such sole discretion, shall be final and conclusive. Borrower
acknowledges that the Administrative Agent may enter into agreements with other
Lenders that would condition its approval or other rights hereunder on the
consent of the Required Lenders.
8.3. GOVERNING LAW.
-------------
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST ANY LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS AGREEMENT (OTHER THAN ANY ACTION IN RESPECT
OF THE CREATION, PERFECTION OR ENFORCEMENT OF A LIEN OR SECURITY INTEREST
CREATED PURSUANT TO ANY LOAN DOCUMENTS NOT GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK) MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK.
BORROWER HEREBY (i) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, AND (ii) IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
8.4. Modification; Waiver in Writing. Neither this Agreement nor any other
-------------------------------
Loan Document nor any of the terms hereof or thereof may be amended, changed,
waived, discharged or terminated, nor shall any consent or approval of the
Lenders be granted hereunder, unless such amendment, change, waiver, discharge,
termination, consent or approval is in writing signed by the Required Lenders;
provided, that no such amendment, change, waiver, discharge, termination,
--------
consent or approval shall (i) without the consent of each Lender, extend the
scheduled maturity (including the final maturity) of the Loan, or reduce the
rate or extend the time of payment of interest or fees in respect of the Loan or
reduce or increase the principal
53
amount of the Loan, or (ii) without the consent of each Lender, reduce any
percentage specified in, or otherwise modify, the definition of Required
Lenders, or (iii) without the consent of each Lender, consent to the assignment
or transfer by Borrower of any of its rights or obligations under (or in respect
of) this Agreement. No provision of Article IX may be amended without the
----------
consent of the Agents.
8.5. Delay Not a Waiver. Neither any failure nor any delay on the part of
------------------
Administrative Agent, the Collateral Agent, or any Lender in insisting upon
strict performance of any term, condition, covenant or agreement, or exercising
any right, power, remedy or privilege under this Agreement, the Note, any other
Loan Document, or any other instrument given as security therefor, shall operate
as or constitute a waiver thereof, nor shall a single or partial exercise
thereof preclude any other future exercise, or the exercise of any other right,
power, remedy or privilege. In particular, and not by way of limitation, by
accepting payment after the due date of any amount payable under this Agreement,
the Notes or any other Loan Document, neither the Administrative Agent, the
Collateral Agent, nor the Lenders shall be deemed to have waived any right
either to require prompt payment when due of all other amounts due under this
Agreement, the Notes or the other Loan Documents, or to declare a default for
failure to effect prompt payment of any such other amount.
8.6. Notices. All notices, consents, approvals and requests required or
-------
permitted hereunder or under any other Loan Document shall be given in writing
and shall be effective for all purposes if hand delivered or sent by (a)
certified or registered United States mail, postage prepaid, or (b) expedited
prepaid delivery service, either commercial or United States Postal Service,
with proof of attempted delivery, addressed (i) if to any Lender, at its address
set forth on the first page hereof or such other address as may be provided to
Administrative Agent and the Borrowers by notice from time to time, (ii) if to
Administrative Agent, at its address set forth on the first page hereof,
Attention: X. Xxxxxxxx Xxxxxx, (iii) if to the Collateral Agent at its address
set forth on the first page hereof, Attention: Xxxx Xxxxxxx, and (iv) if to the
Borrowers, at its address set forth on the first page hereof, Attention:
Xxxxxxxxxxx X. Xxxxxx, or, in any such case, at such other address and to such
other Person as shall be designated from time to time by any party hereto in a
written notice to the other parties hereto in the manner provided for in this
Section 8.6. Copies of all notices, consents, approvals and requests directed to
-----------
the Administrative Agent shall also be delivered to Cleary, Xxxxxxxx, Xxxxx &
Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxxxxxx, Esq. Copies of all notices, consents, approvals and requests
directed to the Borrowers shall also be delivered to Xxxxxx Xxxxxxxxxx &
Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxx, Xx. A notice shall be deemed to have been given: in the case
of hand delivery, at the time of delivery; in the case of registered or
certified mail, the earlier of the time delivered or five Business Days after
mailing; or in the case of expedited prepaid delivery and telecopy, on the
Business Day after the same was sent. All notices hereunder sent by facsimile
transmission shall be deemed sufficiently served or given for all purposes
hereunder upon transmission as confirmed by the sender's verified facsimile
transmission or certified facsimile activity report, provided that such
--------
transmission is promptly followed by another form of notice allowed by this
Section 8.6. A party receiving a notice which does not comply with the technical
-----------
requirements for notice under this Section 8.6 may elect to waive any
-----------
deficiencies and treat the notice as having been properly given.
54
8.7. TRIAL BY JURY. EACH PARTY HERETO, TO THE FULLEST EXTENT THAT IT
-------------
MAY LAWFULLY DO SO, WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING,
WITHOUT LIMITATION, ANY TORT ACTION BROUGHT BY ANY PARTY HERETO WITH RESPECT TO
THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS.
8.8. Headings. The Article and Section headings in this Agreement
--------
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
8.9. Assignment and Participation.
----------------------------
(a) The Borrowers may not sell, assign or transfer any interest in
the Loan Documents or any portion thereof (including, without limitation, the
Borrowers' rights, title, interests, remedies, powers and duties hereunder and
thereunder). Each Lender shall have the right from time to time in its
discretion to make one or more Assignments and/or Participations to any party;
provided, however, that in the event Xxxxxxx Xxxxx Mortgage Company is at any
time a Lender and makes an assignment hereunder, it shall continue to serve as
Administrative Agent, subject to Section 9.9. After the effectiveness of any
-----------
Assignment or Participation, the Lender conveying the Assignment or
Participation shall provide notice to the Borrowers of the identity and address
of the assignee or participant lender. Notwithstanding anything in this
Agreement to the contrary, after an Assignment, the assigning Person (in
addition to the assignee) shall continue to have the benefits of any
indemnifications and rights contained herein which such assigning Lender had
prior to such assignment.
(b) If, pursuant to this Section 8.9, any interest in this
-----------
Agreement or any Note is transferred to any transferee that is not a U.S.
Person, the transferor Lender shall cause such transferee, concurrently with the
effectiveness of such transfer, (i) to furnish to the transferor Lender either
Form W-8BEN or Form W-8ECI or any other form in order to establish an exemption
from, or reduction in the rate of, U.S. withholding tax on all interest payments
hereunder, and (ii) to agree (for the benefit of Lender and Borrower) to provide
the transferor Lender a new Form W-8BEN or Form W-8ECI or any forms reasonably
requested in order to establish an exemption from, or reduction in the rate of,
U.S. withholding tax upon the expiration or obsolescence of any previously
delivered form and comparable statements in accordance with applicable U.S. laws
and regulations and amendments duly executed and completed by such transferee,
and to comply from time to time with all applicable U.S. laws and regulations
with regard to such withholding tax exemption.
8.10. Severability. Wherever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
8.11. Preferences. The Administrative Agent shall have the continuing
-----------
and exclusive right to apply or reverse and reapply any and all payments by the
Borrowers to any portion of the obligations of the Borrowers hereunder and under
the Loan Documents to correct
55
any errors. To the extent the Borrowers make a payment or payments to the
Administrative Agent or the Lenders for the Borrowers' benefit hereunder or
under any other Loan Document, which payment or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds received, the obligations or part thereof
intended to be satisfied shall be revived and continue in full force and effect,
as if such payment or proceeds had not been received by Administrative Agent or
the Lenders.
8.12. Waiver of Notice. The Borrowers shall not be entitled to any
----------------
notices of any nature whatsoever from the Administrative Agent, any Lender or
the Collateral Agent except with respect to matters for which this Agreement or
the other Loan Documents expressly provide for the giving of notice by such
Person to the Borrowers and except with respect to matters for which the
Borrowers are not, pursuant to applicable Legal Requirements, permitted to waive
the giving of notice. To the extent permitted by applicable Legal Requirements,
each Borrower hereby expressly waives the right to receive any notice from the
Administrative Agent, each Lender and Collateral Agent with respect to any
matter for which this Agreement or the other Loan Documents does not expressly
provide for the giving of notice by any one or more of such Persons to the
Borrowers. Except as otherwise expressly provided herein, no notice to or demand
on the Borrowers, or waiver of any provision hereof, shall entitle the Borrowers
to any other or future notice or demand or waiver in the same, similar or other
circumstances.
8.13. Remedies of Borrower. In the event that a claim or adjudication
--------------------
is made that the Administrative Agent, the Collateral Agent, or any of the
Lenders or their agents has unreasonably delayed acting in any case where by law
or under this Agreement or the other Loan Documents, any of such Persons has an
obligation to act promptly, each Borrower agrees that no such Person shall be
liable for any monetary damages, and the Borrowers' sole remedies shall be
limited to commencing an action seeking injunctive relief or declaratory
judgment.
8.14. Exhibits and Schedules Incorporated. The Exhibits and Schedules
-----------------------------------
attached hereto are hereby incorporated herein as a part of this Agreement with
the same effect as if set forth in the body hereof.
8.15. Offsets, Counterclaims and Defenses. Each Borrower hereby
-----------------------------------
waives the right to assert a counterclaim, other than a mandatory or compulsory
counterclaim, in any action or proceeding brought against it by the
Administrative Agent, the Collateral Agent, or any Lender arising out of or in
any way connected with the Note, this Agreement, the other Loan Documents or the
Indebtedness. Any assignee of any Xxxxxx's interest in and to this Agreement,
the Note, and the other Loan Documents shall take the same free and clear of all
offsets, counterclaims or defenses which are unrelated to this Agreement, the
Notes and the other Loan Documents which the Borrowers may otherwise have
against any assignor of rights under this Agreement, the Note, the Mortgages and
the other Loan Documents, and no such unrelated counterclaim or defense shall be
interposed or asserted by the Borrowers in any action or proceeding brought by
any such assignee upon this Agreement, any of the Note, or the other Loan
Documents and any such right to interpose or assert any such unrelated offset,
counterclaim or defense in any such action or proceeding is hereby expressly and
irrevocably waived by the Borrowers.
56
8.16. No Joint Venture. Nothing in this Agreement is intended to
----------------
create a joint venture, partnership, tenancy-in-common, or joint tenancy
relationship between the Borrowers and any of the Lenders or the Administrative
Agent, nor to grant the Administrative Agent or any of the Lenders any interest
in the Properties other than that of mortgagee, secured party or lender.
8.17. Waiver of Marshaling of Properties Defense. Each Borrower
------------------------------------------
waives all rights to a marshaling of the assets of such Borrower, and others
with interests in the Borrowers, and of the Properties, or to a sale in inverse
order of alienation in the event of foreclosure of the interests hereby created,
and agrees not to assert any right under any laws pertaining to the marshaling
of assets, the sale in inverse order of alienation, homestead exemption, the
administration of estates of decedents, or any other matters whatsoever to
defeat, reduce or affect the right of the Collateral Agent, the Administrative
Agent and the Lenders under the Loan Documents to a sale of any Property subject
to a Mortgage hereunder for the collection of the Indebtedness without any prior
or different resort for collection, or the right of the Lenders to the payment
of the Indebtedness out of the Net Proceeds of the Properties in preference to
every other claimant whatsoever.
8.18. [Intentionally Omitted].
---------------------
8.19. Conflict; Construction of Documents. In the event of any
-----------------------------------
conflict between the provisions of this Agreement and the provisions of the
Notes or any of the other Loan Documents, the provisions of this Agreement shall
prevail. The parties hereto acknowledge that they were represented by counsel in
connection with the negotiation and drafting of the Loan Documents and that the
Loan Documents shall not be subject to the principle of construing their meaning
against the party which drafted same.
8.20. Brokers and Financial Advisors. Each of the Borrowers and the
------------------------------
Lenders hereby represent that they have dealt with no financial advisors,
brokers, underwriters, placement agents, agents or finders in connection with
the transactions contemplated by this Agreement. The Borrowers, on the one hand,
and the Lenders, on the other, each hereby agree to indemnify and hold the other
harmless from and against any and all claims, liabilities, costs and expenses of
any kind in any way relating to or arising from a claim by any Person that such
Person acted on behalf of the indemnifying party in connection with the
transactions contemplated herein. The provisions of this Section 8.20 shall
------------
survive the expiration and termination of this Agreement and the repayment of
the Indebtedness.
8.21. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
8.22. Estoppel Certificates. The Borrowers hereby agree at any time
---------------------
and from time to time, upon not less than 5 days' prior written notice by the
Administrative Agent, to execute, acknowledge and deliver to the party specified
in such notice, a statement, in writing, certifying that this Agreement is
unmodified and in full force and effect (or if there have been modifications,
that the same, as modified, is in full force and effect and stating the
modifications hereto), specifying the amount of the Principal Indebtedness, and
stating whether or not, to the
57
knowledge of the Borrowers, any Default or Event of Default has occurred and is
then continuing, and, if so, specifying each such Default or Event of Default.
8.23. Payment of Expenses; Mortgage Recording Taxes. The Borrowers
------------------- ------------------------
shall pay all Transaction Costs, which shall include, without limitation,
reasonable out-of-pocket costs and expenses of the Administrative Agent, the
Lenders and the Collateral Agent (including reasonable attorneys' fees and
expenses) in connection with (i) the underwriting of the Loan, (ii) the
negotiation, preparation, execution and delivery of this Agreement and the other
Loan Documents and the documents and instruments referred to herein and therein,
(iii) the creation, perfection, protection or continuation of the Liens in the
Collateral (including, without limitation, fees and expenses for title and lien
searches or mortgages or UCC financing statements, title insurance premiums and
filing and recording fees, third party due diligence expenses for the Properties
plus travel expenses and accounting firm fees), (iv) the negotiation,
preparation, execution and delivery of any amendment, waiver or consent relating
to any of the Loan Documents, (v) the Borrowers' compliance with the terms of
the Loan Documents and (vi) the preservation of rights under and enforcement of
the Loan Documents and the documents and instruments referred to therein.
8.24. Right of Set-off. 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 continuance of an Event of
Default, the Lenders are authorized at any time and from time to time, subject
to the prior approval of the Required Lenders, without presentment, demand,
protest or other notice of any kind (all of which rights being hereby expressly
waived), to set-off and to appropriate and apply any and all deposits (general
or special) and any other indebtedness at any time held or owing by a Lender
(including, without limitation, branches, agencies or Affiliates of a Lender
wherever located) to or for the credit or the account of the Borrowers against
the obligations and liabilities of the Borrowers to the Lenders hereunder, under
the Notes or under the other Loan Documents or otherwise, irrespective of
whether a Lender or the Administrative Agent shall have made any demand
hereunder and although such obligations, liabilities or claims, or any of them,
may be contingent or unmatured, and any such set-off shall be deemed to have
been made immediately upon the occurrence of an Event of Default even though
such charge is made or entered on the books of such Lender subsequent thereto.
8.25. Exculpation of Administrative Agent and Lenders. Neither the
-----------------------------------------------
Administrative Agent nor any Lender undertakes or assumes any responsibility or
duty to Borrower or any other party to select, review, inspect, examine,
supervise, pass judgment upon or inform the Borrowers or any third party of (a)
the existence, quality, adequacy or suitability of appraisals of any of the
Properties or other Collateral, (b) any environmental report, or (c) any other
matters or items, including, but not limited to, engineering, soils and seismic
reports which are contemplated in the Loan Documents. Any such selection,
review, inspection, examination and the like, and any other due diligence
conducted by Administrative Agent or any Lender, is solely for the purpose of
protecting Administrative Agent's and the Lenders' rights under the Loan
Documents, and shall not render Administrative Agent or any Lender liable to the
Borrowers or any third party for the existence, sufficiency, accuracy,
completeness or legality thereof.
58
8.26. Exculpation of CALPERS. CALPERS shall have no liability under
----------------------
the Loan Documents under any circumstances except in connection with its pledge
of its membership interest in Calwest pursuant to the Parent Pledge Agreement.
ARTICLE IX
AGENTS
------
9.1. Appointment and Authorization of Collateral Agent and
-----------------------------------------------------
Administrative Agent. Each Lender hereby appoints and designates LaSalle Bank
--------------------
National Association as Collateral Agent and Xxxxxxx Xxxxx Mortgage Company as
Administrative Agent, and each Lender hereby authorizes each such Agent to take
such action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, no Agent shall have any duties or
responsibilities except those expressly set forth herein, nor shall any Agent
have or be deemed to have any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist on the part of any Agent.
9.2. Delegation of Duties. Each Agent may execute any of its
--------------------
respective duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Agents shall not
be responsible to the Lenders or the Borrowers for the negligence or misconduct
of any agent, employee or attorney-in-fact that it selects with reasonable care.
9.3. Liability of Agents. Neither any Agent, its respective
-------------------
Affiliates, nor their respective officers, directors, employees, agents, or
attorneys-in-fact (all of the foregoing being collectively referred to as the
"Agent-Related Persons") shall (a) be liable for any action taken or omitted to
---------------------
be taken by any of them under or in connection with this Agreement or any other
Loan Document (except for its own gross negligence or willful misconduct), (b)
be responsible in any manner to any of the Lenders for any recital, statement,
representation or warranty made by Borrower or any its Affiliates or officers,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by such Agent under or in connection with, this Agreement or any
other Loan Document, or for the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, any other Loan Document, or for
any failure of any Borrower or any other party to any Loan Document to perform
its obligations hereunder or thereunder, or (c) be responsible for the
enforceability of the Loan Documents. No Agent-Related Person shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of Borrower or any Affiliates thereof. Each Agent agrees to promptly
furnish to each Lender copies of all financial statements and other
certificates, reports, papers, documents or notices received by it hereunder in
its capacity as an Agent.
59
9.4. Reliance by Agents.
------------------
(a) Generally. Each Agent shall be entitled to rely, and shall be
---------
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, telecopy, telex or other document
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by such Agent. Each
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Each Agent shall in all cases
be fully protected and indemnified in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Lenders.
(b) Conditions Precedent. For purposes of determining compliance
--------------------
with the conditions specified in Article III, each Lender that has executed this
-----------
Agreement or become a Lender pursuant to Section 8.9 shall be deemed, by
-----------
execution of this Agreement or by so becoming a Lender, as the case may be, to
have consented to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to the Lenders on or prior to the later of (i) the date of this
Agreement and (ii) the date such Lender becomes a party to this Agreement,
unless an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the initial borrowing specifying its objection thereto and either such
objection shall not have been withdrawn by notice to the Administrative Agent to
that effect or such Lender shall not have made available to the Administrative
Agent the Lender's ratable portion of such borrowing.
9.5. Notice of Default. No Agent shall be deemed to have knowledge
-----------------
or notice of the occurrence of any Default or Event of Default, except that the
Administrative Agent shall be deemed to have such knowledge or notice (i) with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, and (ii) if
the Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default" (and the
Collateral Agent shall be deemed to have such knowledge if so informed by the
Administrative Agent). In the event that the Administrative Agent receives such
a notice, the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be requested by the Required Lenders.
9.6. Credit Decision. Each Lender expressly acknowledges that none
---------------
of the Agent-Related Persons has made any representation or warranty to such
Lender and that no act by any Agent hereinafter taken, including any review of
the affairs of the Borrowers, or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by such Agent to any Lender. Each
Lender represents to each Agent that such Lender has, independently and without
reliance upon such Agent and based on such documents and information as such
Lender
60
has deemed appropriate, made its own appraisal of and investigation into the
Properties and the creditworthiness of the Borrowers and all applicable Legal
Requirements relating to the transactions contemplated hereby, and made its own
decision to enter into this Agreement and extend credit to the Borrowers
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the Properties and the creditworthiness of the Borrowers.
Except for notices, reports and other documents expressly herein required to be
furnished to the Lenders by any Agent, such Agent shall have no duty or
responsibility to provide any Lender with any credit or other information
concerning the Properties, the Borrowers or any Affiliate of the Borrowers which
may come into the possession of any of the Agent-Related Persons.
9.7. Indemnification. The Lenders shall indemnify upon demand the
---------------
Agent-Related Persons (to the extent not reimbursed by or on behalf of Xxxxxxxx
and without limiting the obligation of Borrower to do so) ratably from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expense and disbursements of any kind
whatsoever which may at any time (including at any time following the repayment
of the Loan) be imposed on, incurred by or asserted against any such Person in
any way relating to or arising out of this Agreement or any document
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any such Person
under or in connection with any of the foregoing; provided, however, that no
-------- -------
Lender shall be liable for the payment to the Agent-Related Persons of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse each Agent upon demand (to the extent
such Agent is not reimbursed upon demand by the Borrowers, unless such Agent is
legally restricted from making such demand upon the Borrowers, in which case
demand need not be made upon the Borrowers) for its ratable share of any costs
or out-of-pocket expenses (including attorneys' fees and expenses, including the
allocated fees of in-house counsel) incurred by such Agent in connection with
the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein
to the extent that such Agent is not reimbursed for such expenses by or on
behalf of the Borrowers. Without limiting the generality of the foregoing, if
the Internal Revenue Service or any authority of the United States or other
jurisdiction asserts a claim that such Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered or was not properly executed, or because such Lender failed to
notify such Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason),
such Lender shall indemnify such Agent fully for all amounts paid, directly or
indirectly, by such Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
such Agent under this Section 9.7, together with all costs, expenses and
-----------
attorneys' fees (including
61
allocated costs for in-house legal services). The obligation of the Lenders in
this Section 9.7 shall survive the payment of the Indebtedness.
-----------
9.8. Agent in Individual Capacity. The Administrative Agent and
----------------------------
LaSalle Bank National Association (and any other parties that may hereafter
serve as an Agent), and each of their respective Affiliates, may make loans to,
issue letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory or other business with, the Borrowers and their Affiliates as though
the Administrative Agent or LaSalle Bank National Association (or any other such
entity) were not an agent hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that pursuant to such activities, the
Administrative Agent, LaSalle Bank National Association and/or their respective
Affiliates may receive information regarding the Borrowers and their Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Borrowers and/or such Affiliates), and acknowledge that the
Administrative Agent, LaSalle Bank National Association and their respective
Affiliates shall be under no obligation to provide such information to the
Lenders. With respect to its Loan, any Lender that is also an Agent shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though each of them were not an Agent, and the terms
"Lender" and "Lenders" shall include any Lender that serves as an Agent, in its
individual capacity.
9.9 Successor Agents. The Collateral Agent may be removed by the
----------------
Required Lenders with or without cause upon 30 days' notice to such Agent, the
Administrative Agent may be removed by the Lenders holding at least 66 2/3% of
the aggregate Principal Indebtedness outstanding at such time with or without
cause upon 30 days' notice to the Administrative Agent, and any Agent may resign
from the performance of all its duties and responsibilities hereunder and under
the other Loan Documents upon 30 days' notice to the Lenders and the Borrowers,
provided that Xxxxxxx Xxxxx Mortgage Company may not resign as Administrative
--------
Agent prior to the commencement of the first Extension Term, and any such
resignation by Xxxxxxx Xxxxx Mortgage Company shall not be effective unless it
is approved by Xxxxxxx holding at least 66 2/3% of the aggregate Principal
Indebtedness. Upon the giving of either such notice and, if applicable, the
granting of such consent, the Required Lenders shall appoint a successor
Administrative Agent or Collateral Agent, as the case may be, for the Lenders.
If, in the case of the resignation of an Agent, no successor Administrative
Agent or Collateral Agent, as the case may be, is appointed prior to the
effective date of the resignation of such retiring Agent, the retiring Agent
shall appoint, after consulting with the Lenders and the Borrowers, a successor
Agent in such capacity. Upon the acceptance of its appointment as successor
Agent in such capacity hereunder, a successor Agent shall succeed to all the
rights, powers and duties of the retiring or removed Agent in such capacity, and
the term "Administrative Agent" or "Collateral Agent", as the case may be, shall
mean such successor Administrative Agent or Collateral Agent, as the case may
be, and the retiring or removed Agent's rights, powers and duties as Agent in
such capacity shall be terminated. The provisions of this Article IX shall
----------
continue to inure to the benefit of the Agent that has resigned or been removed
as to any actions taken or omitted to be taken by it while it was an Agent under
this Agreement. If no successor Agent has accepted appointment as Agent in the
applicable capacity by the date which is 30 days following a retiring Agent's
notice of resignation or receipt of notice of removal, the retiring Agent's
resignation or removal shall nevertheless be effective and the Required Lenders
shall perform all of the duties
62
of such Agent hereunder until such time, if any, as the Required Xxxxxxx appoint
a successor Agent in such capacity as provided for above.
9.10. Standard of Care of the Collateral Agent; etc.
---------------------------------------------
(a) The Collateral Agent agrees for the benefit of the Lenders that
it will hold the original Loan Documents it receives as a custodian and shall
handle such Loan Documents in accordance with Accepted Practices and the
provisions of this Agreement.
(b) The Collateral Agent shall not be required to take any
discretionary actions hereunder except at the written direction of the Person or
Persons otherwise authorized in the Loan Documents to take such action or to
cause the Collateral Agent to take such action. The Collateral Agent shall not
be under any obligation or duty to perform any act which, in the Collateral
Agent's sole reasonable judgment, could involve it in expense or liability or to
institute or defend any suit in respect thereof, or to advance any of its own
monies, unless the Administrative Agent, the Required Lenders or the Borrowers,
as the case may be, shall have offered to the Collateral Agent reasonable
security or indemnity against such expense, liability, suit or advance.
(c) The Lenders (ratably) and the Borrowers shall indemnify and
hold the Collateral Agent, and its agents, employees, officers, directors,
attorneys and Affiliates harmless from and against any loss, cost or damage
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred by the Collateral Agent in connection with the transactions
contemplated hereby, excluding any loss, cost or damage arising as a result of
the Collateral Agent's failure to adopt and follow Accepted Practices, gross
negligence, fraud, bad faith, willful misconduct or violation of applicable law.
The indemnification set forth in this Section 9.10(c) shall survive the
---------------
satisfaction and payment of the Indebtedness and the termination of the
Agreement.
(d) The Collateral Agent and the Borrowers may deem and treat the
payees of the Notes as the owners thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed with
the Collateral Agent and the Borrowers.
63
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized representatives, all as of the day and
year first above written.
LENDER AND ADMINISTRATIVE AGENT: BORROWERS:
XXXXXXX XXXXX MORTGAGE CALWEST INDUSTRIAL PROPERTIES, LLC
COMPANY
By: Xxxxxxx Xxxxx Real Estate By: RREEF America L.L.C., its manager
Funding Corp., its
General Partner
By: ______________________________
Name:
By:______________________________ Title:
Authorized Signatory
Commitment Percentage: 100%
ROOSTER ACQUISITION CORP.
By: __________________________________
Name:
Title:
COLLATERAL AGENT:
LaSALLE BANK NATIONAL ASSOCIATION
By: ___________________________________
Name:
Title:
EXHIBIT A
---------
FORM OF NOTE
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PROMISSORY NOTE
CALWEST INDUSTRIAL PROPERTIES, LLC
and
ROOSTER ACQUISITION CORP.
$1,225,000,000 New York, New York
[________], 2001
FOR VALUE RECEIVED, the undersigned CALWEST INDUSTRIAL PROPERTIES,
LLC, a California limited liability company, and ROOSTER ACQUISITION CORP., a
Maryland corporation (together the "Makers"), jointly and severally promise to
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pay to the ------ order of [LENDER], a [________], and its successors and
assigns (the holder of this Note from time to time, or any portion hereof, is
hereinafter referred to as the "Holder") to such account pursuant to such wiring
------
instruction as the ------ Holder may from time to time designate in writing, the
principal amount of ONE BILLION TWO HUNDRED TWENTY FIVE MILLION DOLLARS AND NO
CENTS ($1,225,000,000.00), or if less, so much thereof as has been advanced and
may be outstanding from time to time (the "Principal Amount"), together with
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interest thereon and all other amounts payable to the Holder under the Loan
Documents with respect to the Loan, such principal, interest and other amounts
to be payable as provided in the Loan Agreement. Capitalized terms used herein
but not otherwise defined herein shall have the meanings assigned to such terms
in the Loan Agreement.
This Note is one of the Notes referred to in that certain Loan
Agreement, dated as of the date hereof, among the Makers, as the initial
borrowers, the Holder, in its capacity as one of the Lenders, Xxxxxxx Xxxxx
Mortgage Company, as Administrative Agent, LaSalle Bank National Association, as
the Collateral Agent, and the other Lenders from time to time party thereto (as
amended, modified or supplemented and in effect from time to time, the "Loan
----
Agreement") and evidences the Loan made by the Holder thereunder. Reference to
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the Loan Agreement is hereby made for a statement of the rights of the Holder
and the duties and obligations of the Makers, but neither this reference to the
Loan Agreement nor any provision thereof shall affect or impair the absolute and
unconditional obligation of the Makers to pay the principal, interest and other
amounts, if any, payable with respect to this Note when due. The Principal
Amount shall bear interest at the rates provided for in the Loan Agreement.
All advances under the Loan made to the Makers pursuant to the Loan
Agreement, the respective maturities thereof and all repayments of principal
thereof may be endorsed by the Holder upon the schedule hereto attached (or any
continuation pages affixed by Holder) which (including such continuation pages)
is a part of this Note; provided, however, that the failure of the Holder to
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make any such endorsement shall not in any manner affect the obligation of
Makers to repay the Principal Amount in accordance with the terms hereof. Such
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endorsements (absent manifest error) shall be prima facie evidence of the
----- -----
principal amount evidenced hereby.
This Note is secured by the security interests and liens granted in
the Loan Agreement and in the other Loan Documents.
The Principal Xxxxxx, together with accrued interest and other sums or
amounts due hereunder, shall become immediately due and payable at the option of
the in accordance with the provisions of the Loan Agreement.
With respect to the amounts due and payable pursuant to this Note, the
Makers waive the following: (1) demand, presentment, protest, notice of
dishonor, notice of nonpayment, suit against any party, diligence in collection
of this Note, except for notices required by any Governmental Authority and
notices required by the Loan Agreement; and (2) any further receipt by or
acknowledgment of any Collateral now or hereafter deposited, pledged or conveyed
as security for the Loan.
In no event shall the amount of interest (and any other sums or
amounts that are deemed to constitute interest under applicable Legal
Requirements) due or payable hereunder (including interest calculated at the
Default Rate) exceed the maximum rate of interest designated by applicable Legal
Requirements (the "Maximum Amount"), and in the event such excess payment is
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inadvertently paid by the Makers or inadvertently received by the Holder, then
such excess sum shall be credited as a payment of principal on this Note, and if
in excess of the outstanding Principal Amount of this Note, shall be immediately
returned to the Makers upon such determination. It is the express intent hereof
that the Makers not pay and the Holder not receive, directly or indirectly,
interest in excess of the Maximum Amount.
This Note may be assigned in whole or in part as provided in the Loan
Agreement.
The Holder shall not by any act, delay, omission or otherwise be
deemed to have amended, modified, supplemented, waived, extended, discharged or
terminated any of its rights or remedies, except by a written amendment,
modification, supplement, waiver, extension, discharge or termination entered
into in accordance with the Loan Agreement. All rights and remedies of the
Holder under the terms of this Note and applicable statutes or rules of law
shall be cumulative, and may be exercised successively or concurrently. The
Makers agree that there are no defenses, equities or setoffs with respect to the
obligations set forth herein.
Wherever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable Legal Requirements,
but if any provision of this Note shall be prohibited by or be invalid under
applicable Legal Requirements, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Note.
The Holder (or the Collateral Agent for the Holder) may, at its
option, release any Collateral given to secure the indebtedness evidenced
hereby, and no such release shall impair the obligations of the Makers to the
Holder under this Note and the other Loan Documents.
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This Note was negotiated in the State of New York, and made by the
Makers and accepted by the Holder in the State of New York, and the proceeds of
this Note were disbursed from the State of New York, which State the parties
agree has a substantial relationship to the parties and to the underlying
transaction embodied hereby, and in all respects (including, without limitation,
matters of construction, validity and performance), this Note and the
obligations arising hereunder shall be governed by, and construed in accordance
with, the laws of the State of New York applicable to contracts made and
performed in such State and any applicable law of the United States of America.
The provisions of this Note shall be subject to the provisions of the
Loan Agreement, including Section 8.19 of the Loan Agreement, the provisions of
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which are incorporated herein by this reference as if set forth in full herein.
ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE HOLDER OR THE MAKERS
ARISING OUT OF OR RELATING TO THIS NOTE (OTHER THAN ANY ACTION IN RESPECT OF THE
CREATION, PERFECTION OR ENFORCEMENT OF A LIEN OR SECURITY INTEREST CREATED
PURSUANT TO ANY LOAN DOCUMENTS NOT GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK) MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK.
EACH OF THE MAKERS HEREBY (i) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM, AND (ii) IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
THE MAKERS AND, BY ACCEPTANCE HEREOF, THE HOLDER, TO THE FULLEST
EXTENT THAT EACH MAY LAWFULLY DO SO, WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDING (INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION), BROUGHT BY EITHER
PARTY HERETO WITH RESPECT TO THIS NOTE OR THE OTHER LOAN DOCUMENTS.
[Signature page follows]
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EXHIBIT A
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FORM OF NOTE
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IN WITNESS WHEREOF, the Makers have caused this Note to be properly
executed as of the day and year first above written.
MAKERS:
Calwest Industrial Properties, LLC, a
California limited liability company
By: _________________________
Name:
Title:
Rooster Acquisition Corp., a Maryland
corporation
By: _________________________
Name:
Title:
EXHIBIT A
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FORM OF NOTE
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Schedule To
Promissory Note
Calwest Industrial Properties, LLC
Rooster Acquisition Corp.
Date Amount of Advance Amount of Principal Outstanding
by Holder Repaid Principal Balance
------------------ -------------------- --------------------- -------------------
EXHIBIT B
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FORM OF ACQUISITION VEHICLE PLEDGE AGREEMENT
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PLEDGE AGREEMENT
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THIS PLEDGE AGREEMENT, dated as of ______, 2001, is made by
Rooster Acquisition Corp. (the "Pledgor"), in favor of LaSalle Bank National
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Association, as Collateral Agent (the "Collateral Agent") for the benefit of the
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Lenders under the Loan Agreement (as defined below). Except as otherwise defined
herein, terms used herein and defined in the Loan Agreement shall be used herein
as therein defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Pledgor, together with Calwest Industrial Properties,
LLC ("Calwest") as the initial Borrowers, and the Collateral Agent have entered
into that certain Loan Agreement, dated as of the date hereof, by and among the
initial Borrowers, [________], as a Lender, Xxxxxxx Xxxxx Mortgage Company, as
Administrative Agent (the "Administrative Agent"), the Collateral Agent and the
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other Lenders from time to time party thereto (as the same may be extended,
renewed, supplemented or modified, the "Loan Agreement");
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WHEREAS, it is a condition precedent to the making of the Loan
under the Loan Agreement that the Pledgor shall have executed and delivered to
the Collateral Agent this Pledge Agreement;
WHEREAS, the Pledgor desires to execute this Pledge Agreement to
satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to the
Pledgor, the receipt and sufficiency of which are hereby acknowledged, the
Pledgor hereby make the following representations and warranties to the
Collateral Agent and hereby covenants and agrees with the Collateral Agent as
follows:
ARTICLE I
DEFINITIONS
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Capitalized terms used herein and not otherwise defined shall
have the meanings given such terms in the Loan Agreement.
"Account" means any securities account in the name of Collateral
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Agent on the books of ____________________ to which any Collateral may be
credited.
"Collateral" means all of the Stock, Partnership Interests,
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Limited Liability Company Interests and Other Equity Interests now owned or
hereafter acquired by Pledgor, together with any Account to which any of the
foregoing Collateral may be credited.
"Limited Liability Company Interests" means all of the interests
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at any time owned by Pledgor in any limited liability company that constitutes a
Subsidiary of the Pledgor.
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"Obligations" means (i) the full and prompt payment when due
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(whether at the stated maturity, by acceleration or otherwise) of the
Indebtedness of the Borrowers under the Loan Agreement (including obligations
which, but for any automatic stay under Section 362(a) of the Bankruptcy Code,
would become due), and (ii) the prompt payment and performance of and compliance
with all other of Borrowers' obligations now existing or hereafter arising under
the Loan Agreement.
"Other Equity Interests" means all equity interests (other than
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Stock, Limited Liability Company Interests or Partnership Interests) at any time
owned by Pledgor in any Person that constitutes a Subsidiary of the Pledgor.
"Partnership Interests" means all of the interests at any time
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owned by Pledgor in any partnership that constitutes a Subsidiary of the
Pledgor.
"Pledge Agreement" means this Pledge Agreement, as the same may
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from time to time hereafter be modified, supplemented or amended.
"Pledge Termination Date" shall mean the earlier to occur of (i)
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the date upon which all Obligations have been paid in full and (ii) the
consummation of the Trust Merger (as defined in the Loan Agreement) and
satisfaction of the conditions set forth in Section 1.1(c) of the Loan
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Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
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"Stock" means all of the issued and outstanding shares of stock
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at any time owned by the Pledgor of any corporation that constitutes a
Subsidiary of the Pledgor.
"[Wyoming] Collateral" means the Other Equity Interests at any
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time owned by Pledgor in [Wyoming].
ARTICLE II
PLEDGE OF COLLATERAL
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Section 2.1. Pledge. To secure the Obligations, the Pledgor
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hereby grants to the Collateral Agent a security interest in all of the Stock,
Partnership Interests, Limited Liability Company Interests and Other Equity
Interests and all proceeds thereof (and in and to any certificates or
instruments evidencing such Stock, Partnership Interests, Limited Liability
Company Interests or Other Equity Interests) and in and to any Account, in each
case, whether now owned or hereafter acquired by Pledgor. To the extent any such
interests are certificated, Pledgor has delivered to the Collateral Agent
certificates or instruments therefor, accompanied by stock powers duly executed
in blank by the Pledgor in the case of Stock, or such other instruments of
transfer as are reasonably acceptable to the Collateral Agent, to be held by the
Collateral Agent, upon the terms and conditions set forth in this Pledge
Agreement. In the case of the Wyoming Collateral, the Pledgor has given written
instructions to the relevant securities intermediary specified by Collateral
Agent, together with a copy thereof to Collateral Agent, that results in the
crediting of the Wyoming Collateral to an Account.
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Section 2.2. Subsequently Acquired Securities. If the Pledgor
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shall acquire (by purchase, stock dividend, partnership or limited liability
company distribution or otherwise) any additional Stock, Partnership Interests,
Limited Liability Company Interests or Other Equity Interests at any time or
from time to time after the date hereof which are required under the Loan
Agreement to be pledged hereunder, the Pledgor will, (i) to the extent any such
interests are certificated, forthwith deliver certificates or instruments
representing such Stock, Partnership Interests, Limited Liability Company
Interests or Other Equity Interests, accompanied by stock powers duly executed
in blank by the Pledgor in the case of Stock or such other instruments of
transfer as are reasonably acceptable to the Collateral Agent, and will promptly
thereafter deliver to the Collateral Agent a certificate executed by a principal
executive officer of the Pledgor describing such Stock, Partnership Interests,
Limited Liability Company Interests and Other Equity Interests and certifying
that the same has been duly pledged with the Collateral Agent hereunder, and
(ii) to the extent such interests can be paid or delivered by book-entry, give
written instructions to the relevant securities intermediary specified by
Collateral Agent, together with a copy thereof to the Collateral Agent, that
results in the crediting of such interests to an Account.
Section 2.3. Appointment of Sub-Agents; Endorsements. The
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Collateral Agent shall have the right to appoint one or more sub-agents for the
purpose of retaining physical possession of the Stock or any certificates
evidencing Partnership Interests, Limited Liability Company Interests or Other
Equity Interests, which (except during the continuance of an Event of Default)
shall be held in the name of the Pledgor.
Section 2.4. Voting. Unless and until an Event of Default shall
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have occurred and be continuing, the Pledgor shall be entitled to exercise all
voting rights attaching to any and all Stock, Partnership Interests, Limited
Liability Company Interests and Other Equity Interests and to give consents,
waivers or ratifications in respect thereof; provided that no vote shall be cast
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or any consent, waiver or ratification given or any action taken which would, in
any material respect, violate or be inconsistent with any of the terms of this
Pledge Agreement, the Loan Agreement or any of the other Loan Documents, or
which would have the effect of impairing, in any material respect, the position
or interests of the Collateral Agent or any Lender. In respect of any Stock,
Partnership Interests, Limited Liability Company Interests and Other Equity
Interests registered in the name of Collateral Agent or its nominee or which is
credited as a security entitlement to an Account, Collateral Agent shall, at
Collateral Agent's election and upon written request from Pledgor, either (i)
deliver to Pledgor (or as specified in such request) such proxies or powers of
attorney as shall be specified in such request and shall be in form and
substance satisfactory to Collateral Agent or (ii) take such actions reasonably
necessary to exercise or cause to be exercised such voting or other consensual
rights on behalf of and as directed by Xxxxxxx. If an Event of Default shall
occur and be continuing, all rights of the Pledgor to vote and to give consents,
waivers and ratifications shall cease and the Collateral Agent for the benefit
of the Lenders shall have all such rights.
Section 2.5. Distributions. Unless and until an Event of Default
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shall have occurred and be continuing, the Pledgor shall have the right to
receive, collect, retain, use and enjoy (i) any sums paid on or in respect of
Collateral on the liquidation or dissolution of the issuer thereof and (ii) any
cash distributions or any other cash distribution made on or in respect of the
Collateral or any property distributed on or with respect thereto, subject, in
each case, to
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the provisions of the Loan Agreement. If an Event of Default shall have occurred
and be continuing, such right shall automatically be revoked without further
action by Collateral Agent and without further notice to Pledgor.
Section 2.6. Remedies upon an Event of Default.
---------------------------------
(a) In case an Event of Default shall have occurred and be
continuing which results in the acceleration of the Indebtedness, the Collateral
Agent shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Pledge Agreement or by the Loan Agreement or by
law) for the protection and enforcement of its rights in respect of the
Collateral, including, without limitation, all the rights and remedies of a
secured party upon default under the Uniform Commercial Code of the State of New
York, and the Collateral Agent shall be entitled, without limitation, to
exercise the following rights, which the Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable to the Pledgor;
(ii) to transfer all or any part of the Collateral into the
Collateral Agent's name or the name of its nominee or nominees;
(iii) to vote all or any part of the Stock, Partnership
Interests, Limited Liability Company Interests and Other Equity Interests
(whether or not transferred into the name of the Collateral Agent) and give
all consents, waivers and ratifications in respect of the Collateral and
otherwise act with respect thereto as though it were the outright owner
thereof (the Pledgor hereby irrevocably constituting and appointing the
Collateral Agent the proxy and attorney-in-fact of the Pledgor, with full
power of substitution to do so);
(iv) to the fullest extent permitted by law, at any time or from
time to time to sell, assign and deliver, or grant options to purchase, all
or any part of the Collateral, or any interest therein, at any public
(including pursuant to a registration statement pursuant to the Securities
Act) or private sale, without demand of performance, advertisement or
notice of intention to sell or of the time or place of sale or adjournment
thereof or to redeem or otherwise dispose of or realize on (all of which
are hereby waived by the Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Collateral
Agent in its absolute discretion may determine. Each purchaser at any such
sale shall hold the property so sold absolutely free from any claim or
right on the part of the Pledgor, and the Pledgor hereby waives and
releases to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after sale
hereunder, and all rights, if any, of marshaling the Collateral and any
other security for the Obligations or otherwise, and all rights, if any, of
stay and/or appraisal which it now has or may any time in the future have
under rule of law or statute now existing or hereafter enacted. At any such
sale, unless prohibited by applicable law, the Collateral Agent on behalf
of the Lenders may bid for and purchase (by bidding in Obligations or
otherwise) all or any part of the Collateral so sold free from any such
right or equity of redemption. Neither the Collateral Agent nor any Lender
shall be liable for
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failure to collect or realize upon any or all of the Collateral or for any
delay in so doing nor shall any of them be under any obligation to take any
action whatsoever with regard thereto; and
(v) with respect to any sale in accordance with clause (iv) above
of the Wyoming Collateral, the Collateral Agent may approach and negotiate
with a single possible purchaser to effect such sale and/or require that
any such sale (including one held by auction) be subject to restrictions as
to (A) the financial sophistication and ability of any person permitted to
bid or purchase at such sale, (B) the content of legends to be placed upon
any certificates representing the Wyoming Collateral sold in such sale,
including restrictions on future transfer thereof, (C) the representations
to be made by each person bidding or purchasing at such sale relating to
that person's access to financial information about the Pledgor, Wyoming,
the Lenders or the Collateral Agent, and such person's intentions as to the
holding of the Wyoming Collateral so sold for investment, for its own
account, and not with a view to the distribution thereof, and (D) such
other matters as the Collateral Agent may deem necessary or advisable in
order that such sale, notwithstanding any failure so to register the
Wyoming Collateral under the Securities Act, may be effected in compliance
with the Uniform Commercial Code as in effect in any relevant jurisdiction
and other laws affecting the enforcement of creditors' rights, the
Securities Act and all applicable state securities laws.
(b) Each right, power and remedy of the Collateral Agent provided
for in this Pledge Agreement or the Loan Documents or now or hereafter existing
at law or in equity or by statute shall be cumulative and concurrent and shall
be in addition to every other such right, power or remedy. The exercise or
beginning of the exercise by the Collateral Agent of any one or more of the
rights, powers or remedies provided for in this Pledge Agreement or the Loan
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the
Collateral Agent or any Lender of all such other rights, powers or remedies, and
no failure or delay on the part of the Collateral Agent or any Lender to
exercise any such right, power or remedy shall operate as a waiver thereof.
(c) All moneys collected by the Collateral Agent upon any sale or
other disposition of the Collateral, together with all other moneys received by
the Collateral Agent hereunder, shall be applied in accordance with Section 1.8
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of the Loan Agreement.
(d) It is understood and agreed that the Pledgor shall remain
liable to the extent of any deficiency between (1) the amount of the proceeds of
the Collateral applied pursuant to Section 1.8 of the Loan Agreement and (2) the
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outstanding amount of the Obligations.
(e) Upon any sale of the Collateral by the Collateral Agent
hereunder (whether by virtue of the power of sale herein granted, pursuant to
judicial process or otherwise), the receipt of the Collateral Agent or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Collateral Agent or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
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Section 2.7. [Reserved].
Section 2.8. Further Assurances. The Pledgor shall cooperate
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with the Collateral Agent in causing to be filed and recorded at its sole cost
and expense such Uniform Commercial Code financing statements, in all applicable
recording offices of each applicable jurisdiction, as are required to perfect
the security interest of the Collateral Agent in the Collateral, which financing
statements shall be filed by the Collateral Agent. In addition, Pledgor shall,
at Pledgor's sole cost and expense, from time to time as reasonably requested by
Administrative Agent or the Collateral Agent, execute, acknowledge, record,
register, file and/or deliver to Collateral Agent such other instruments,
agreements, certificates and documents (including Uniform Commercial Code
financing statements) as the Administrative Agent or the Collateral Agent may
reasonably request to evidence, confirm, perfect and maintain the Liens granted
or required to be granted to Collateral Agent by this Pledge Agreement and the
other Loan Documents, and shall fully cooperate with the Administrative Agent
and the Collateral Agent and perform all additional acts which are necessary to
effect the purposes of the foregoing.
Section 2.9. The Pledgee as Agent. The Collateral Agent will
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hold in accordance with this Pledge Agreement all items of the Collateral at any
time received under this Pledge Agreement. It is expressly understood and agreed
that the obligations of the Collateral Agent as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Pledge Agreement, are only those expressly set forth in this Pledge
Agreement and in the Loan Agreement. The Collateral Agent shall act hereunder on
the terms and conditions set forth in Article IX of the Loan Agreement.
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Section 2.10. Transfer by Pledgor. The Pledgor will not sell or
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otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except in
accordance with the terms of the Loan Agreement).
Section 2.11. Termination and Release of Pledge. Upon the Pledge
---------------------------------
Termination Date, the pledge of the Collateral contained in this Article II
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shall terminate (provided that all indemnities set forth in the Loan Agreement
shall survive any such termination) and the Collateral Agent, at the request and
expense of the Pledgor, will execute and deliver to the Pledgor a proper
instrument or instruments acknowledging the satisfaction and termination of such
pledge, and will duly assign, transfer and deliver to the Pledgor (without
recourse and without any representation or warranty except that it has not
previously encumbered or sold such Collateral in violation of this Pledge
Agreement) such of the Collateral as may be in the possession of the Collateral
Agent and as has not theretofore been sold or otherwise applied or released
pursuant to this Pledge Agreement, together with any moneys at the time held by
the Collateral Agent hereunder. In the event that any part of the Collateral is
sold in connection with a sale permitted by terms of this Pledge Agreement or
the Loan Agreement or is otherwise released at the direction of the Collateral
Agent, and the proceeds of such sale or sales or from such release are to be
applied in accordance with the terms of this Pledge Agreement or the Loan
Agreement to the extent required to be so applied, the Collateral Agent, at the
request and expense of the Pledgor, will release such Collateral from this
Pledge Agreement, and will duly assign, transfer and deliver to the Pledgor
(without recourse and without any representation or warranty except that it has
not previously encumbered or sold such Collateral in violation of this Pledge
Agreement) such of the Collateral as is then being (or has been) so sold or
released and as
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may be in possession of the Collateral Agent and has not theretofore been
released pursuant to this Pledge Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 3.1. Representations Regarding the Stock. The Pledgor
-----------------------------------
represents and warrants that on the date hereof and on each day on which Pledgor
acquires rights in any additional Collateral constituting Stock:
(a) each Restricted Subsidiary of the Pledgor, and the direct
ownership thereof, is listed on Annex A hereto, as updated by a certification
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delivered pursuant to Section 2.2 hereof.
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(b) the Stock consists of the number, type and percentage ownership of
shares of the stock of the corporations as described in Annex B hereto, as
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updated by a certification delivered pursuant to Section 2.2 hereof.
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(c) on the date hereof, the Pledgor owns or possesses no other Stock.
(d) Xxxxxxx is the sole owner of the Stock pledged by it hereunder,
subject to no pledge, lien, mortgage, hypothecation, security interest, charge,
option or other encumbrance whatsoever, except the liens and security interests
created by this Pledge Agreement and any other Permitted Liens.
(e) All the shares of the Stock have been duly and validly issued and
are fully paid and nonassessable.
(f) This Pledge Agreement creates a valid and enforceable security
interest in the Stock in favor of Collateral Agent for the benefit of Lenders to
secure the Obligations. Upon delivery of the certificates representing the Stock
to the Collateral Agent, the Collateral Agent will have a first priority
perfected security interest in the Stock.
Section 3.2. Representations Regarding the Partnership Interests. The
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Pledgor represents and warrants that on the date hereof and on each day on which
Pledgor acquires rights in any additional Collateral constituting Partnership
Interests:
(a) Each Partnership Interest is listed on Annex C hereto, as updated
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by a certification delivered pursuant to Section 2.2 hereof.
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(b) The Partnership Interests consist of the percentage and categories
of partnership interests as described in Annex C hereto, as updated by a
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certification delivered pursuant to Section 2.2 hereof.
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(c) On the date hereof, the Pledgor does not own or possess any other
Partnership Interests.
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(d) Xxxxxxx is the sole owner of the Partnership Interests pledged by
it hereunder, subject to no pledge, lien, mortgage, hypothecation, security
interest, charge, option or other encumbrance whatsoever, except the liens and
security interests created by this Pledge Agreement and any other Permitted
Liens.
(e) This Pledge Agreement creates a valid and enforceable security
interest in the Partnership Interests in favor of Collateral Agent for the
benefit of Lenders to secure the Obligations. Upon the filing of a UCC financing
statement in the office of the Secretary of State of the State of Maryland
naming the Pledgor as debtor and the Collateral Agent as secured party and
properly identifying the Collateral (and the payment of any applicable fees),
the Collateral Agent will have a perfected first priority security interest in
the Partnership Interests.
Section 3.3. Representations Regarding the Limited Liability Company
-------------------------------------------------------
Interests. The Pledgor represents and warrants that on the date hereof and on
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each day on which Pledgor acquires rights in any additional Collateral
constituting Limited Liability Company Interests:
(a) Each Limited Liability Company Interest is listed on Annex D
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hereto, as updated by a certification delivered pursuant to Section 2.2
-----------
hereof.
(b) The Limited Liability Company Interests consist of the percentage
and categories of limited liability company interests as described in Annex D
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hereto, as updated by a certification delivered pursuant to Section 2.2 hereof.
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(c) On the date hereof, the Pledgor does not own or possess any other
Limited Liability Company Interests.
(d) Pledgor is the sole owner of the Limited Liability Company
Interests pledged by it hereunder, subject to no pledge, lien, mortgage,
hypothecation, security, interest, charge, option or other encumbrance
whatsoever, except the liens and security interests created by this Pledge
Agreement and any other Permitted Liens.
(e) This Pledge Agreement creates a valid and enforceable security
interest in the Limited Liability Company Interests in favor of Collateral Agent
for the benefit of Lenders to secure the Obligations. Upon the filing of a UCC
financing statement in the office of the Secretary of State of the State of
Maryland naming the Pledgor as debtor and the Collateral Agent as secured party
and properly identifying the Collateral (and the payment of any applicable
fees), the Collateral Agent will have a perfected first priority security
interest in the Limited Liability Company Interests.
Section 3.4. Representations Regarding the Other Equity Interests. The
----------------------------------------------------
Pledgor represents and warrants that on the date hereof and on each day on which
Pledgor acquires rights in any additional Collateral constituting Other Equity
Interests:
(a) Each Other Equity Interest is listed on Annex E hereto, as updated
-------
by a certification delivered pursuant to Section 2.2 hereof.
-----------
8
(b) The Other Equity Interests consist of the number, type and
percentage ownership interest (as applicable) as described in Annex E hereto, as
-------
updated by a certification delivered pursuant to Section 2.2 hereof.
-----------
(c) On the date hereof, the Pledgor does not own or possess any other
Other Equity Interests.
(d) Xxxxxxx is the sole owner of the Other Equity Interests pledged by
it hereunder, subject to no pledge, lien, mortgage, hypothecation, security,
interest, charge, option or other encumbrance whatsoever, except the liens and
security interests created by this Pledge Agreement and any other Permitted
Liens.
(e) This Pledge Agreement creates a valid and enforceable security
interest in the Other Equity Interests in favor of Collateral Agent for the
benefit of Lenders to secure the Obligations. With respect to any Other Equity
Interests pledged to the Collateral Agent pursuant to this Pledge Agreement that
are certificated, upon delivery of the certificates representing the such Other
Equity Interests to the Collateral Agent, the Collateral Agent will have a first
priority perfected security interest in the such Other Equity Interests. With
respect to any Other Equity Interests pledged to the Collateral Agent pursuant
to this Pledge Agreement that are uncertificated, upon the filing of a UCC
financing statement in the office of the Secretary of State of the State of
Maryland naming the Pledgor as debtor and the Collateral Agent as secured party
and properly identifying the Collateral (and the payment of any applicable
fees), the Collateral Agent will have a perfected first priority security
interest in such Other Equity Interests.
ARTICLE IV
----------
COVENANTS OF PLEDGOR
--------------------
The Pledgor hereby covenants and agrees that so long as this Pledge
Agreement is in effect and until the Obligations have been paid in full, unless
Collateral Agent waives compliance in writing:
Section 4.1. Covenants Regarding Collateral.
------------------------------
(a) The Pledgor covenants and agrees that it will use its best efforts
to defend the Collateral Agent's right, title and security interest in and to
the Collateral and the respective proceeds thereof against the claims and
demands of all persons whomsoever. The Pledgor covenants and agrees that it will
have like title to and right to pledge any Collateral in which it hereafter
acquires rights as Collateral in which it has rights on the date hereof.
(b) The Pledgor covenants and agrees that it will take no action which
would violate any of the terms of any Loan Document.
(c) The Pledgor agrees to furnish to the Administrative Agent promptly
upon the filing thereof true and correct copies of all filings made by the
Pledgor with the Securities and Exchange Commission with respect to the Wyoming
Collateral (including without limitation, Schedules 13D and 13G).
9
ARTICLE V
---------
MISCELLANEOUS
-------------
Section 5.1. Survival. This Pledge Agreement and all covenants,
--------
agreements, representations and warranties made herein and in the certificates
delivered pursuant hereto shall survive the execution and delivery of this
Pledge Agreement, the making by the Lenders of the Loan under the Loan Agreement
and the execution and delivery by Pledgor to the Lenders of the Notes, and shall
continue in full force and effect so long as any portion of the Obligations is
outstanding and unpaid or such longer period as is set forth herein. Whenever in
this Pledge Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the permitted successors and permitted assigns of
such party. All covenants, promises and agreements in this Pledge Agreement
contained, by or on behalf of the Pledgor, shall inure to the benefit of
Collateral Agent and the Lenders and their successors and assigns. Nothing in
this Pledge Agreement or in the Loan Agreement or any other Loan Document,
expressed or implied, shall give to any Person other than Collateral Agent, the
parties and the holders of the Note and the other Loan Documents, and their
legal representatives, successors and assigns, any benefit or any legal or
equitable right, remedy or claim hereunder.
Section 5.2. Collateral Agent's Discretion. Whenever pursuant to this
-----------------------------
Pledge Agreement, the Collateral Agent exercises any right given to it to
approve or disapprove, or any arrangement or term is to be satisfactory to the
Collateral Agent, the decision of the Collateral Agent to approve or disapprove
or to decide whether arrangements or terms are satisfactory or not satisfactory
shall (except as is otherwise specifically herein provided) be in the reasonable
discretion of the Collateral Agent and shall be final and conclusive.
Section 5.3. GOVERNING LAW. (A) THIS PLEDGE AGREEMENT SHALL BE
-------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE ADMINISTRATIVE
AGENT, THE COLLATERAL AGENT, PLEDGOR, ANY LENDER OR BORROWER ARISING OUT OF OR
RELATING TO THIS PLEDGE AGREEMENT MAY BE INSTITUTED IN ANY FEDERAL OR STATE
COURT IN NEW YORK, NEW YORK. PLEDGOR HEREBY (i) IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND (ii) IRREVOCABLY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
Section 5.4. Modification; Waiver in Writing. This Pledge Agreement
-------------------------------
and the terms hereof may not be amended, changed, waived, discharged or
terminated, nor shall any consent or approval of Collateral Agent be granted
hereunder, unless such amendment, change,
10
waiver, discharge, termination, consent or approval is in writing signed by
Collateral Agent for the benefit of the Lenders and approved in writing by
Administrative Agent and the Pledgor.
Section 5.5. Notices. All notices, consents, approvals and requests
-------
required or permitted hereunder shall be given in writing and shall be effective
for all purposes if delivered in any of the methods and to the addresses
specified in the Loan Agreement.
SECTION 5.6. TRIAL BY JURY. EACH PARTY HERETO TO THE FULLEST EXTENT
-------------
THAT IT MAY LAWFULLY DO SO, WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING,
INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, BROUGHT BY ANY PARTY HERETO WITH
RESPECT TO THIS PLEDGE AGREEMENT, THE LOAN AGREEMENT, THE NOTES OR THE OTHER
LOAN DOCUMENTS.
Section 5.7. Headings. The Article and Section headings in this
--------
Pledge Agreement are included herein for convenience of reference only and shall
not constitute a part of this Pledge Agreement for any other purpose.
Section 5.8. Severability. Wherever possible, each provision of this
------------
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Pledge Agreement.
Section 5.9. Conflict; Construction of Documents. In the event of any
-----------------------------------
conflict between the provisions of this Pledge Agreement and the provisions of
the Loan Agreement, the provisions of the Loan Agreement shall prevail. The
parties hereto acknowledge that they were represented by counsel in connection
with the negotiation and drafting of this Pledge Agreement and that this Pledge
Agreement shall not be subject to the principle of construing a provision's
meaning against the party that drafted the same.
Section 5.10. Counterparts. This Pledge Agreement may be executed in
------------
any number of counterparts, each of which when so executed and delivered shall
be an original, but all of which shall together constitute one and the same
instrument.
Section 5.11. Third Party Beneficiaries. The Administrative Agent and
-------------------------
the Lenders are intended third party beneficiaries of this Pledge Agreement.
11
IN WITNESS WHEREOF, this Pledge Agreement has been duly executed as of the
day and year first above written.
ROOSTER ACQUISITION CORP., a Maryland
corporation
By: ___________________________________
Name:
Title:
ANNEX A
-------
Restricted Subsidiaries
--------------------------------------------------------------------------------
Name of Restricted Subsidiary Direct Owners
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ANNEX B
-------
Stock
None
ANNEX C
-------
Partnership Interests
None
ANNEX D
-------
Limited Liability Company Interests
None
ANNEX E
-------
Other Equity Interests
--------------------------------------------------------------------------------------------------------------------------
Percentage of
Outstanding Equity
Name of Company Type of Equity Number of Equity Interests of Same
Interest Interests Type
--------------------------------------------------------------------------------------------------------------------------
Wyoming Common Shares XX XX
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
3
EXHIBIT C
---------
FORM OF CALWEST PLEDGE AGREEMENT
--------------------------------
PLEDGE AGREEMENT
----------------
THIS PLEDGE AGREEMENT, dated as of ________, 2001, is made by
Calwest Industrial Properties, LLC (the "Pledgor"), in favor of LaSalle Bank
-------
National Association, as Collateral Agent (the "Collateral Agent") for the
----------------
benefit of the Lenders under the Loan Agreement (as defined below). Except as
otherwise defined herein, terms used herein and defined in the Loan Agreement
shall be used herein as therein defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Pledgor, together with Rooster Acquisition Corp. as the
initial Borrowers, and the Collateral Agent have entered into that certain Loan
Agreement, dated as of the date hereof, by and among the initial Borrowers,
[___________] as a Lender, Xxxxxxx Xxxxx Mortgage Company, as Administrative
Agent (the "Administrative Agent"), the Collateral Agent and the other Lenders
--------------------
from time to time party thereto (as the same may be extended, renewed,
supplemented or modified, the "Loan Agreement");
--------------
WHEREAS, it is a condition precedent to the making of the Loan
under the Loan Agreement that the Pledgor shall have executed and delivered to
the Collateral Agent this Pledge Agreement;
WHEREAS, the Pledgor desires to execute this Pledge Agreement to
satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to the
Pledgor, the receipt and sufficiency of which are hereby acknowledged, the
Pledgor hereby make the following representations and warranties to the
Collateral Agent and hereby covenants and agrees with the Collateral Agent as
follows:
ARTICLE I
DEFINITIONS
-----------
Capitalized terms used herein and not otherwise defined shall
have the meanings given such terms in the Loan Agreement.
"Collateral" means all of the Stock, Partnership Interests,
----------
Limited Liability Company Interests and Other Equity Interests now owned or
hereafter acquired by Pledgor.
"Limited Liability Company Interests" means all of the interests
-----------------------------------
at any time owned by Pledgor in any limited liability company that constitutes a
Subsidiary of the Pledgor and in which security interest may be granted
"Obligations" means (i) the full and prompt payment when due
-----------
(whether at the stated maturity, by acceleration or otherwise) of the
Indebtedness of the Borrowers under the Loan Agreement (including obligations
which, but for any automatic stay under Section 362(a)
1
of the Bankruptcy Code, would become due), and (ii) the prompt payment and
performance of and compliance with all other of Borrowers' obligations now
existing or hereafter arising under the Loan Agreement.
"Other Equity Interests" means all equity interests (other than
----------------------
Stock, Limited Liability Company Interests or Partnership Interests) at any time
owned by Pledgor in any Person that constitutes a Subsidiary of the Pledgor and
in which a security interest may be granted.
"Partnership Interests" means all of the interests at any time
---------------------
owned by Pledgor in any partnership that constitutes a Subsidiary of the Pledgor
and in which a security interest may be granted.
"Pledge Agreement" means this Pledge Agreement, as the same may
----------------
from time to time hereafter be modified, supplemented or amended.
"Pledge Termination Date" shall mean the date upon which all
-----------------------
Obligations have been paid in full.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Stock" means all of the issued and outstanding shares of stock
-----
at any time owned by the Pledgor of any corporation that constitutes a
Subsidiary of the Pledgor and in which a security interest may be granted.
ARTICLE II
PLEDGE OF COLLATERAL
--------------------
Section 2.1. Pledge. To secure the Obligations, the Pledgor
------
hereby grants to the Collateral Agent a security interest in all of the Stock,
Partnership Interests, Limited Liability Company Interests and Other Equity
Interests and all proceeds thereof (and in and to any certificates or
instruments evidencing such Stock, Partnership Interests, Limited Liability
Company Interests or Other Equity Interests), in each case, whether now owned or
hereafter acquired by Pledgor. To the extent any such interests are
certificated, Pledgor has delivered to the Collateral Agent certificates or
instruments therefor, accompanied by stock powers duly executed in blank by the
Pledgor in the case of Stock, or such other instruments of transfer as are
reasonably acceptable to the Collateral Agent, to be held by the Collateral
Agent, upon the terms and conditions set forth in this Pledge Agreement.
Section 2.2. Subsequently Acquired Securities. If the Pledgor
--------------------------------
shall acquire (by purchase, stock dividend, partnership or limited liability
company distribution or otherwise) any additional Stock, Partnership Interests,,
Limited Liability Company Interests or Other Equity Interests at any time or
from time to time after the date hereof which are required under the Loan
Agreement to be pledged hereunder, the Pledgor will, to the extent any such
interests are certificated, forthwith deliver certificates or instruments
representing such Stock, Partnership Interests, Limited Liability Company
Interests or Other Equity Interests, accompanied by stock powers duly executed
in blank by the Pledgor in the case of Stock or such other instruments of
2
transfer as are reasonably acceptable to the Collateral Agent, and will promptly
thereafter deliver to the Collateral Agent a certificate executed by a principal
executive officer of the Pledgor describing such Stock, Partnership Interests,
Limited Liability Company Interests and Other Equity Interests and certifying
that the same has been duly pledged to the Collateral Agent hereunder.
Section 2.3. Appointment of Sub-Agents; Endorsements. The
---------------------------------------
Collateral Agent shall have the right to appoint one or more sub-agents for the
purpose of retaining physical possession of the Stock or any certificates
evidencing Partnership Interests, Limited Liability Company Interests or Other
Equity Interests, which (except during the continuance of an Event of Default)
shall be held in the name of the Pledgor.
Section 2.4. Voting. Unless and until an Event of Default shall
------
have occurred and be continuing, the Pledgor shall be entitled to exercise all
voting rights attaching to any and all Stock, Partnership Interests, Limited
Liability Company Interests and Other Equity Interests and to give consents,
waivers or ratifications in respect thereof; provided that no vote shall be cast
--------
or any consent, waiver or ratification given or any action taken which would, in
any material respect, violate or be inconsistent with any of the terms of this
Pledge Agreement, the Loan Agreement or any of the other Loan Documents, or
which would have the effect of impairing, in any material respect, the position
or interests of the Collateral Agent or any Lender. If an Event of Default shall
occur and be continuing, all rights of the Pledgor to vote and to give consents,
waivers and ratifications shall cease and the Collateral Agent for the benefit
of the Lenders shall have all such rights.
Section 2.5. Distributions. Unless and until an Event of Default
-------------
shall have occurred and be continuing, the Pledgor shall have the right to
receive, collect, retain, use and enjoy (i) any sums paid on or in respect of
Collateral on the liquidation or dissolution of the issuer thereof and (ii) any
cash distributions or any other cash distribution made on or in respect of the
Collateral or any property distributed on or with respect thereto, subject, in
each case, to the provisions of the Loan Agreement. If an Event of Default shall
have occurred and be continuing, such right shall automatically be revoked
without further action by Collateral Agent and without further notice to
Pledgor.
Section 2.6. Remedies upon an Event of Default.
---------------------------------
(a) In case an Event of Default shall have occurred and be
continuing which results in the acceleration of the Indebtedness, the Collateral
Agent shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Pledge Agreement or by the Loan Agreement or by
law) for the protection and enforcement of its rights in respect of the
Collateral, including, without limitation, all the rights and remedies of a
secured party upon default under the Uniform Commercial Code of the State of New
York, and the Collateral Agent shall be entitled, without limitation, to
exercise the following rights, which the Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable to the Pledgor;
3
(ii) to transfer all or any part of the Collateral into the
Collateral Agent's name or the name of its nominee or nominees;
(iii) to vote all or any part of the Stock, Partnership Interests,
Limited Liability Company Interests and Other Equity Interests (whether or
not transferred into the name of the Collateral Agent) and give all
consents, waivers and ratifications in respect of the Collateral and
otherwise act with respect thereto as though it were the outright owner
thereof (the Pledgor hereby irrevocably constituting and appointing the
Collateral Agent the proxy and attorney-in-fact of the Pledgor, with full
power of substitution to do so); and
(iv) to the fullest extent permitted by law, at any time or from time
to time to sell, assign and deliver, or grant options to purchase, all or
any part of the Collateral, or any interest therein, at any public or
private sale, without demand of performance, advertisement or notice of
intention to sell or of the time or place of sale or adjournment thereof or
to redeem or otherwise dispose of or realize on (all of which are hereby
waived by the Pledgor), for cash, on credit or for other property, for
immediate or future delivery without any assumption of credit risk, and for
such price or prices and on such terms as the Collateral Agent in its
absolute discretion may determine. Each purchaser at any such sale shall
hold the property so sold absolutely free from any claim or right on the
part of the Pledgor, and the Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with
respect to the Collateral, whether before or after sale hereunder, and all
rights, if any, of marshaling the Collateral and any other security for the
Obligations or otherwise, and all rights, if any, of stay and/or appraisal
which it now has or may any time in the future have under rule of law or
statute now existing or hereafter enacted. At any such sale, unless
prohibited by applicable law, the Collateral Agent on behalf of the Lenders
may bid for and purchase (by bidding in Obligations or otherwise) all or
any part of the Collateral so sold free from any such right or equity of
redemption. Neither the Collateral Agent nor any Lender shall be liable for
failure to collect or realize upon any or all of the Collateral or for any
delay in so doing nor shall any of them be under any obligation to take any
action whatsoever with regard thereto.
(b) Each right, power and remedy of the Collateral Agent provided
for in this Pledge Agreement or the Loan Documents or now or hereafter existing
at law or in equity or by statute shall be cumulative and concurrent and shall
be in addition to every other such right, power or remedy. The exercise or
beginning of the exercise by the Collateral Agent of any one or more of the
rights, powers or remedies provided for in this Pledge Agreement or the Loan
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the
Collateral Agent or any Lender of all such other rights, powers or remedies, and
no failure or delay on the part of the Collateral Agent or any Lender to
exercise any such right, power or remedy shall operate as a waiver thereof.
(c) All moneys collected by the Collateral Agent upon any sale or
other disposition of the Collateral, together with all other moneys received by
the Collateral Agent hereunder, shall be applied in accordance with Section 1.8
-----------
of the Loan Agreement.
4
(d) It is understood and agreed that the Pledgor shall remain
liable to the extent of any deficiency between (1) the amount of the proceeds of
the Collateral applied pursuant to Section 1.8 of the Loan Agreement and (2) the
-----------
outstanding amount of the Obligations.
(e) Upon any sale of the Collateral by the Collateral Agent
hereunder (whether by virtue of the power of sale herein granted, pursuant to
judicial process or otherwise), the receipt of the Collateral Agent or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Collateral Agent or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
Section 2.7. [Reserved].
----------
Section 2.8. Further Assurances. The Pledgor shall cooperate with
------------------
the Collateral Agent in causing to be filed and recorded at its sole cost and
expense such Uniform Commercial Code financing statements, in all applicable
recording offices of each applicable jurisdiction, as are required to perfect
the security interest of the Collateral Agent in the Collateral, which financing
statements shall be filed by the Collateral Agent. In addition, Pledgor shall,
at Xxxxxxx's sole cost and expense, from time to time as reasonably requested by
Agent or the Collateral Agent, execute, acknowledge, record, register, file
and/or deliver to Agent such other instruments, agreements, certificates and
documents (including Uniform Commercial Code financing statements) as the
Administrative Agent or the Collateral Agent may reasonably request to evidence,
confirm, perfect and maintain the Liens granted or required to be granted to
Collateral Agent by this Pledge Agreement and the other Loan Documents, and
shall fully cooperate with the Administrative Agent and the Collateral Agent and
perform all additional acts which are necessary to effect the purposes of the
foregoing.
Section 2.9. The Pledgee as Agent. The Collateral Agent will hold
--------------------
in accordance with this Pledge Agreement all items of the Collateral at any time
received under this Pledge Agreement. It is expressly understood and agreed that
the obligations of the Collateral Agent as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Pledge Agreement, are only those expressly set forth in this Pledge
Agreement and in the Loan Agreement. The Collateral Agent shall act hereunder on
the terms and conditions set forth in Article IX of the Loan Agreement.
----------
Section 2.10. Transfer by Pledgor. The Pledgor will not sell or
-------------------
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except in
accordance with the terms of the Loan Agreement).
Section 2.11. Termination and Release of Pledge. Upon the Pledge
---------------------------------
Termination Date, the pledge of the Collateral contained in this Article II
----------
shall terminate (provided that all indemnities set forth in the Loan Agreement
shall survive any such termination) and the Collateral Agent, at the request and
expense of the Pledgor, will execute and deliver to the Pledgor a proper
instrument or instruments acknowledging the satisfaction and termination of such
pledge, and will duly assign, transfer and deliver to the Pledgor (without
recourse and without any representation or warranty except that it has not
previously encumbered or sold such
5
Collateral in violation of this Pledge Agreement) such of the Collateral as may
be in the possession of the Collateral Agent and as has not theretofore been
sold or otherwise applied or released pursuant to this Pledge Agreement,
together with any moneys at the time held by the Collateral Agent hereunder. In
the event that any part of the Collateral is sold in connection with a sale
permitted by terms of this Pledge Agreement or the Loan Agreement or is
otherwise released at the direction of the Collateral Agent, and the proceeds of
such sale or sales or from such release are to be applied in accordance with the
terms of this Pledge Agreement or the Loan Agreement to the extent required to
be so applied, the Collateral Agent, at the request and expense of the Pledgor,
will release such Collateral from this Pledge Agreement, and will duly assign,
transfer and deliver to the Pledgor (without recourse and without any
representation or warranty except that it has not previously encumbered or sold
such Collateral in violation of this Pledge Agreement) such of the Collateral as
is then being (or has been) so sold or released and as may be in possession of
the Collateral Agent and has not theretofore been released pursuant to this
Pledge Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 3.1. Representations Regarding the Stock. The Pledgor
-----------------------------------
represents and warrants that on the date hereof and on each day on which Pledgor
acquires rights in any additional Collateral constituting Stock:
(a) each Restricted Subsidiary of the Pledgor, and the direct
ownership thereof, is listed on Annex A hereto, as updated by a certification
-------
delivered pursuant to Section 2.2 hereof.
-----------
(b) the Stock consists of the number, type and percentage
ownership of shares of the stock of the corporations as described in Annex B
-------
hereto, as updated by a certification delivered pursuant to Section 2.2 hereof.
-----------
(c) on the date hereof, the Pledgor owns or possesses no other
Stock.
(d) Pledgor is the legal, beneficial and record owner of, and
has good and marketable title to, all Stock pledged by it hereunder, subject to
no pledge, lien, mortgage, hypothecation, security interest, charge, option or
other encumbrance whatsoever, except the liens and security interests created by
this Pledge Agreement and any other Permitted Liens.
(e) All the shares of the Stock have been duly and validly
issued and are fully paid and nonassessable.
(f) This Pledge Agreement creates a valid and enforceable
security interest in the Stock in favor of Collateral Agent for the benefit of
Lenders to secure the Obligations. Upon delivery of the certificates
representing the Stock to the Collateral Agent, the Collateral Agent will have a
first priority perfected security interest in the Stock.
6
Section 3.2. Representations Regarding the Partnership Interests.
---------------------------------------------------
The Pledgor represents and warrants that on the date hereof and on each day on
which Pledgor acquires rights in any additional Collateral constituting
Partnership Interests:
(a) Each Partnership Interest is listed on Annex C hereto, as
-------
updated by a certification delivered pursuant to Section 2.2 hereof.
-----------
(b) The Partnership Interests consist of the percentage and
categories of partnership interests as described in Annex C hereto, as updated
-------
by a certification delivered pursuant to Section 2.2 hereof.
-----------
(c) On the date hereof, the Pledgor does not own or possess any
other Partnership Interests.
(d) Pledgor is the legal, beneficial and record owner of, and has
good and marketable title to, all Partnership Interests pledged by it hereunder,
subject to no pledge, lien, mortgage, hypothecation, security interest, charge,
option or other encumbrance whatsoever, except the liens and security interests
created by this Pledge Agreement and any other Permitted Liens.
(e) This Pledge Agreement creates a valid and enforceable
security interest in the Partnership Interests in favor of Collateral Agent for
the benefit of Lenders to secure the Obligations. Upon the filing of a UCC
financing statement in the office of the Secretary of State of the State of
[California] naming the Pledgor as debtor and the Collateral Agent as secured
party and properly identifying the Collateral (and the payment of any applicable
fees), the Collateral Agent will have a perfected first priority security
interest in the Partnership Interests.
Section 3.3. Representations Regarding the Limited Liability
-----------------------------------------------
Company Interests. The Pledgor represents and warrants that on the date hereof
-----------------
and on each day on which Pledgor acquires rights in any additional Collateral
constituting Limited Liability Company Interests:
(a) Each Limited Liability Company Interest is listed on Annex D
-------
hereto, as updated by a certification delivered pursuant to Section 2.2 hereof.
-----------
(b) The Limited Liability Company Interests consist of the
percentage and categories of limited liability company interests as described in
Annex D hereto, as updated by a certification delivered pursuant to Section 2.2
------- -----------
hereof.
(c) On the date hereof, the Pledgor does not own or possess any
other Limited Liability Company Interests.
(d) Pledgor is the legal, beneficial and record owner of, and has
good and marketable title to all Limited Liability Company Interests pledged by
it hereunder, subject to no pledge, lien, mortgage, hypothecation, security,
interest, charge, option or other encumbrance whatsoever, except the liens and
security interests created by this Pledge Agreement and any other Permitted
Liens.
7
(e) This Pledge Agreement creates a valid and enforceable
security interest in the Limited Liability Company Interests in favor of
Collateral Agent for the benefit of Lenders to secure the Obligations. Upon the
filing of a UCC financing statement in the office of the Secretary of State of
the State of [California] naming the Pledgor as debtor and the Collateral Agent
as secured party and properly identifying the Collateral (and the payment of any
applicable fees), the Collateral Agent will have a perfected first priority
security interest in the Limited Liability Company Interests.
Section 3.4. Representations Regarding the Other Equity
------------------------------------------
Interests. The Pledgor represents and warrants that on the date hereof and on
---------
each day on which Pledgor acquires rights in any additional Collateral
constituting Other Equity Interests:
(a) Each Other Equity Interest is listed on Annex E hereto, as
-------
updated by a certification delivered pursuant to Section 2.2 hereof.
-----------
(b) The Other Equity Interests consist of the number, type and
percentage ownership interest (as applicable) as described in Annex E hereto, as
-------
updated by a certification delivered pursuant to Section 2.2 hereof.
-----------
(c) On the date hereof, the Pledgor does not own or possess any
other Other Equity Interests.
(d) Pledgor is the legal, beneficial and record owner of, and
has good and marketable title to all Other Equity Interests pledged by it
hereunder, subject to no pledge, lien, mortgage, hypothecation, security,
interest, charge, option or other encumbrance whatsoever, except the liens and
security interests created by this Pledge Agreement and any other Permitted
Liens.
(e) This Pledge Agreement creates a valid and enforceable
security interest in the Other Equity Interests in favor of Collateral Agent for
the benefit of Lenders to secure the Obligations. With respect to any Other
Equity Interests pledged to the Collateral Agent pursuant to this Pledge
Agreement that are certificated, upon delivery of the certificates representing
the such Other Equity Interests to the Collateral Agent, the Collateral Agent
will have a first priority perfected security interest in the such Other Equity
Interests. With respect to any Other Equity Interests pledged to the Collateral
Agent pursuant to this Pledge Agreement that are uncertificated, upon the filing
of a UCC financing statement in the office of the Secretary of State of the
State of [California] naming the Pledgor as debtor and the Collateral Agent as
secured party and properly identifying the Collateral (and the payment of any
applicable fees), the Collateral Agent will have a perfected first priority
security interest in such Other Equity Interests.
8
ARTICLE IV
----------
COVENANTS OF PLEDGOR
--------------------
The Pledgor hereby covenants and agrees that so long as this
Pledge Agreement is in effect and until the Obligations have been paid in full,
unless Collateral Agent waives compliance in writing:
Section 4.1. Covenants Regarding Collateral.
---------------------------------
The Pledgor covenants and agrees that it will use its best
efforts to defend the Collateral Agent's right, title and security interest in
and to the Collateral and the respective proceeds thereof against the claims and
demands of all persons whomsoever. The Pledgor covenants and agrees that it will
use commercially reasonable efforts to have like title to and right to pledge
any Collateral in which it hereafter acquires rights as Collateral in which it
has rights on the date hereof.
ARTICLE V
---------
MISCELLANEOUS
-------------
Section 5.1. Survival. This Pledge Agreement and all covenants,
--------
agreements, representations and warranties made herein and in the certificates
delivered pursuant hereto shall survive the execution and delivery of this
Pledge Agreement, the making by the Lenders of the Loan under the Loan Agreement
and the execution and delivery by Pledgor to the Lenders of the Notes, and shall
continue in full force and effect so long as any portion of the Obligations is
outstanding and unpaid or such longer period as is set forth herein. Whenever in
this Pledge Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the permitted successors and permitted assigns of
such party. All covenants, promises and agreements in this Pledge Agreement
contained, by or on behalf of the Pledgor, shall inure to the benefit of
Collateral Agent and the Lenders and their successors and assigns. Nothing in
this Pledge Agreement or in the Loan Agreement or any other Loan Document,
expressed or implied, shall give to any Person other than Collateral Agent, the
parties and the holders of the Note and the other Loan Documents, and their
legal representatives, successors and assigns, any benefit or any legal or
equitable right, remedy or claim hereunder.
Section 5.2. Collateral Agent's Discretion. Whenever pursuant to
-----------------------------
this Pledge Agreement, the Collateral Agent exercises any right given to it to
approve or disapprove, or any arrangement or term is to be satisfactory to the
Collateral Agent, the decision of the Collateral Agent to approve or disapprove
or to decide whether arrangements or terms are satisfactory or not satisfactory
shall (except as is otherwise specifically herein provided) be in the reasonable
discretion of the Collateral Agent and shall be final and conclusive.
9
Section 5.3. GOVERNING LAW. (A) THIS PLEDGE AGREEMENT SHALL BE
-------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE AGENT,
PLEDGOR, ANY LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS PLEDGE
AGREEMENT MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK.
PLEDGOR HEREBY (i) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, AND (ii) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
Section 5.4. Modification; Waiver in Writing. This Pledge
-------------------------------
Agreement and the terms hereof may not be amended, changed, waived, discharged
or terminated, nor shall any consent or approval of Collateral Agent be granted
hereunder, unless such amendment, change, waiver, discharge, termination,
consent or approval is in writing signed by Collateral Agent for the benefit of
the Lenders and approved in writing by Agent and the Pledgor.
Section 5.5. Notices. All notices, consents, approvals and
-------
requests required or permitted hereunder shall be given in writing and shall be
effective for all purposes if delivered in any of the methods and to the
addresses specified in the Loan Agreement.
SECTION 5.6. TRIAL BY JURY. EACH PARTY HERETO TO THE FULLEST
-------------
EXTENT THAT IT MAY LAWFULLY DO SO, WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING, lNCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, BROUGHT BY ANY PARTY
HERETO WITH RESPECT TO THIS PLEDGE AGREEMENT, THE LOAN AGREEMENT, THE NOTES OR
THE OTHER LOAN DOCUMENTS.
Section 5.7. Headings. The Article and Section headings in this
--------
Pledge Agreement are included herein for convenience of reference only and shall
not constitute a part of this Pledge Agreement for any other purpose.
Section 5.8. Severability. Wherever possible, each provision of
------------
this Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Pledge Agreement.
Section 5.9. Conflict; Construction of Documents. In the event of
-----------------------------------
any conflict between the provisions of this Pledge Agreement and the provisions
of the Loan Agreement, the provisions of the Loan Agreement shall prevail. The
parties hereto acknowledge that they were
10
represented by counsel in connection with the negotiation and drafting of this
Pledge Agreement and that this Pledge Agreement shall not be subject to the
principle of construing a provision's meaning against the party that drafted the
same.
Section 5.10. Counterparts. This Pledge Agreement may be executed in
------------
any number of counterparts, each of which when so executed and delivered shall
be an original, but all of which shall together constitute one and the same
instrument.
Section 5.11. Third Party Beneficiaries. The Administrative Agent and
-------------------------
the Lenders are intended third party beneficiaries of this Pledge Agreement.
11
IN WITNESS WHEREOF, this Pledge Agreement has been duly executed as of the
day and year first above written.
CALWEST INDUSTRIAL PROPERTIES, LLC
By: RREEF America L.L.C., its Manager
By: __________________________________
Name:
Title:
ANNEX A
-------
Restricted Subsidiaries
--------------------------------------------------------------------------------
Name of Restricted Subsidiary Direct Owners
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ANNEX B
-------
Stock
--------------------------------------------------------------------------------
Percentage of
Name of Corporation Number of Shares Type of Shares Outstanding Shares
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ANNEX C
-------
Partnership Interests
--------------------------------------------------------------------------------
Percentage of
Name of Partnership Category of Partnership Outstanding
Interest Partnership Interests
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ANNEX D
-------
Limited Liability Company Interests
----------------------------------------------------------------------------------------------
Percentage of
Category of Limited Outstanding Limited
Name of Limited Liability Company Liability Company Interest Liability Company
Interests
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
ANNEX E
-------
Other Equity Interests
-----------------------------------------------------------------------------------
Percentage of
Outstanding Equity
Name of Company Type of Equity Number of Equity Interests of Same
Interest Interests Type
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
EXHIBIT D
---------
FORM OF PARENT PLEDGE AGREEMENT
-------------------------------
PARENT PLEDGE AGREEMENT
-----------------------
THIS PARENT PLEDGE AGREEMENT (this "Agreement"), dated as of
---------
[_____], 2001, is made by [the State of California Public Employees' Retirement
System, a unit of the State and Consumer Services Agency of the State of
California, having an address at 000 X Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000,
Attention: ___________][RoCal, L.L.C., a Delaware limited liability company,
having an address at 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000-5853, Attention: Xxxxxx Xxxx]/1/ ("Pledgor"), in favor of
-------
LaSalle Bank National Association, as Collateral Agent ("Collateral Agent") for
----------------
the benefit of Lenders under the Loan Agreement (as defined below). Except as
otherwise defined herein, terms used herein and defined in the Loan Agreement
shall be used herein as therein defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Calwest Industrial Properties, LLC ("Calwest"),
-------
Rooster Acquisition Corp. (the "Rooster Corp."), together, as the initial
------------
Borrowers, [________], as a Lender, Xxxxxxx Xxxxx Mortgage Company, as
Administrative Agent (the "Administrative Agent"), the Collateral Agent and the
--------------------
other Lenders from time to time party thereto ("Lenders") are parties to that
-------
certain Loan Agreement, dated as of [_________], 2001 (as extended, renewed,
supplemented or modified from time to time, the "Loan Agreement");
--------------
WHEREAS, Xxxxxxx, together with [RoCal, L.L.C. ("RoCal")][[the
State of California Public Employees' Retirement System ("CALPERS")] together
own all of the issued and outstanding limited liability company interests of
Calwest issued pursuant to the Operating Agreement of Calwest, dated as of March
31, 1998 as amended by the First Amendment to Operating Agreement of Calwest,
effective as of the dates set forth therein and the Authorization and Second
Amendment to Operating Agreement of Calwest dated as of [________], 2001 (as the
same may be further extended, renewed, supplemented or modified from time to
time, the "Operating Agreement"),
-------------------
WHEREAS, to induce Lenders to make the Loan, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor desires to pledge the limited liability company interests
in Calwest owned by it to secure the obligations of Borrowers under the Loan
Agreement;
NOW, THEREFORE, in consideration of the benefits accruing to
Pledgor, the receipt and sufficiency of which are hereby acknowledged, Pledgor
hereby makes the following representations and warranties to Collateral Agent
and hereby covenants and agrees with Collateral Agent, for the benefit of
Xxxxxx, as follows:
---------------------------
/1/ CalPERS and RoCal will each execute a separate Parent Pledge Agreement.
ARTICLE I
DEFINITIONS
-----------
Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Loan Agreement.
"Agreement" means this Parent Pledge Agreement, as the same
---------
may from time to time hereafter be modified, supplemented or amended.
"Borrowers" has the meaning provided in the recitals hereto.
---------
"Collateral" has the meaning provided in Section 2.1.
---------- -----------
"Limited Liability Company Interests" means the limited
-----------------------------------
liability company interests in Calwest now owned or hereafter acquired by the
Pledgor.
"Obligations" means (i) the full and prompt payment when due
-----------
(whether at the stated maturity, by acceleration or otherwise) of the
Indebtedness of the Borrowers under the Loan Agreement (including obligations
which, but for any automatic stay under Section 362(a) of the Bankruptcy Code,
would become due), and (ii) the prompt payment and performance of and compliance
with all other of Borrowers' obligations now existing or hereafter arising under
the Loan Agreement.
"Pledge Termination Date" shall mean the date upon which all
-----------------------
Obligations have been paid in full.
ARTICLE II
----------
PLEDGE OF LIMITED LIABILITY COMPANY INTEREST; INDEMNITIES
---------------------------------------------------------
Section 2.1. Pledge. In order to induce Lenders to make the
------
Loan, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Pledgor hereby grants to Collateral Agent for
the benefit of Lenders, as security for the Obligations, a security interest in
all of Pledgor's right, title and interest in and to the Limited Liability
Company Interests and the Operating Agreement and all proceeds thereof,
including, without limitation, all of Pledgor's distributions and rights to
receive distributions from Calwest (collectively, the "Collateral").
----------
Section 2.2. Voting. Unless and until an Event of Default
------
shall have occurred and be continuing, Pledgor shall be entitled to exercise all
voting rights attaching to any and all Collateral and to give consents, waivers
or ratifications in respect thereof; provided that no vote shall be cast or any
--------
consent, waiver or ratification given or any action taken which would, in any
material respect, violate or be inconsistent with any of the terms of this
Agreement, the Loan Agreement or any of the other Loan Documents. If an Event of
Default shall occur and be continuing, all rights of Pledgor to vote and to give
consents, waivers and ratifications shall cease and Collateral Agent shall have
all such rights.
2
Section 2.3. Distributions. Unless and until an Event of
-------------
Default shall have occurred and be continuing, the Pledgor shall have the right
to receive, collect, retain, use and enjoy (i) any sums paid on or in respect of
Collateral on the liquidation or dissolution of the issuer thereof and (ii) any
cash distributions or any other cash distribution made on or in respect of the
Collateral or any property distributed on or with respect thereto, subject, in
each case, to the provisions of the Loan Agreement. If an Event of Default shall
have occurred and be continuing, such right shall automatically be revoked
without further action by Collateral Agent and without further notice to
Pledgor.
Section 2.4. Remedies upon an Event of Default.
---------------------------------
(a) In case an Event of Default shall have occurred and be
continuing which results in the acceleration of the Indebtedness, Collateral
Agent shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Agreement or by law) for the protection and
enforcement of its rights in respect of the Collateral, including, without
limitation, all the rights and remedies of a secured party upon default under
the Uniform Commercial Code, and Collateral Agent shall be entitled, without
limitation, to exercise the following rights, which Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the
ollateral otherwise payable to Pledgor;
(ii) to transfer all or any part of the Collateral into
Collateral Agent's name or the name of its nominee or nominees;
(iii) to vote all or any part of the Collateral (whether or
not transferred into the name of Collateral Agent) and give all
consents, waivers and ratifications in respect of the Collateral and
otherwise act with respect thereto as though it were the outright owner
thereof (Pledgor hereby irrevocably constituting and appointing Lender
the proxy and attorney-in-fact of Pledgor, with full power of
substitution to do so); and
(iv) to the fullest extent permitted by law, at any time or
from time to time to sell, assign and deliver, or grant options to
purchase, all or any part of the Collateral, or any interest therein,
at any public or private sale, without demand of performance,
advertisement or notice of intention to sell or of the time or place of
sale or adjournment thereof or to redeem or otherwise dispose of or
realize on (all of which are hereby waived by Pledgor), for cash, on
credit or for other property, for immediate or future delivery without
any assumption of credit risk, and for such price or prices and on such
terms as Collateral Agent in its absolute discretion may determine.
Each purchaser at any such sale shall hold the property so sold
absolutely free from any claim or right on the part of Pledgor, and
Pledgor hereby waives and releases to the fullest extent permitted by
law any right or equity of redemption with respect to the Collateral,
whether before or after sale hereunder, and all rights, if any, of
marshaling the Collateral and any other security for the Obligations or
otherwise, and all rights, if any, of stay and/or appraisal which they
now have or may any time in the future have under rule of law or
statute now existing or hereafter enacted. At any such sale, unless
prohibited by applicable law, Collateral Agent
3
may bid for and purchase (by bidding in Obligations or otherwise) all
or any part of the Collateral so sold free from any such right or
equity of redemption. Collateral Agent shall not be liable for failure
to collect or realize upon any or all of the Collateral or for any
delay in so doing nor shall it be under any obligation to take any
action whatsoever with regard thereto.
(b) Each right, power and remedy of Collateral Agent provided
for in this Agreement or the Loan Documents or now or hereafter existing at law
or in equity or by statute shall be cumulative and concurrent and shall be in
addition to every other such right, power or remedy. The exercise or beginning
of the exercise by Collateral Agent of any one or more of the rights, powers or
remedies provided for in this Agreement or the Loan Agreement or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by Lenders, Administrative Agent or
Collateral Agent of all such other rights, powers or remedies, and no failure or
delay on the part of Lenders, Administrative Agent or Collateral Agent to
exercise any such right, power or remedy shall operate as a waiver thereof.
(c) All moneys collected by Collateral Agent upon any sale or
other disposition of the Collateral, together with all other moneys received by
Collateral Agent hereunder, shall be applied in accordance with Section 1.8 of
-----------
the Loan Agreement.
(d) Upon any sale of the Collateral by Collateral Agent
hereunder (whether by virtue of the power of sale herein granted, pursuant to
judicial process or otherwise), the receipt by Collateral Agent or the officer
making the sale of the purchase price shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold, and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to Collateral Agent or such officer or be answerable in
any way for the misapplication or nonapplication thereof.
Section 2.5. Indemnities. Pledgor agrees (i) to indemnify and
-----------
hold harmless the Collateral Agent, the Administrative Agent and the Lenders
from and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse the Collateral Agent, the Administrative Agent and the Lenders for all
reasonable costs and expenses, including reasonable attorneys' fees, growing out
of or resulting from this Agreement or the exercise by the Collateral Agent of
any right or remedy granted to it hereunder or under the Loan Agreement except,
in each case, (a) with respect to those arising from the Collateral Agent's
gross negligence, bad faith, fraud or willful misconduct, subject however, to
the limitations of Section 8.13 of the Loan Agreement, and (b) with respect to
any amounts for which the Collateral Agent, the Administrative Agent and the
Lenders have been previously reimbursed by the Borrowers. If and to the extent
that the obligations of the Pledgor under this Section 2.5 are unenforceable for
-----------
any reason, Pledgor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law.
Section 2.6. Further Assurances. Pledgor shall cooperate with
------------------
Collateral Agent in causing to be filed and recorded at their sole cost and
expense such Uniform Commercial
4
Code financing statements, in all applicable recording offices of each
applicable jurisdiction, as are determined by Collateral Agent to be required to
perfect the security interest of Collateral Agent in the Collateral, which
financing statements shall be recorded by the Collateral Agent. In addition,
Pledgor shall, at Xxxxxxx's sole cost and expense, from time to time as
reasonably requested by Collateral Agent, execute, acknowledge, record,
register, file and/or deliver to Collateral Agent such other instruments,
agreements, certificates and documents (including Uniform Commercial Code
financing statements) as Collateral Agent may reasonably request to evidence,
confirm, perfect and maintain the Liens granted or required to be granted to
Collateral Agent by this Agreement and the other Loan Documents, and shall fully
cooperate with Collateral Agent and perform all additional acts which are
necessary to effect the purposes of the foregoing.
Section 2.7. The Pledgee as Agent. The Collateral Agent will
--------------------
hold in accordance with this Pledge Agreement all items of the Collateral at any
time received under this Pledge Agreement. It is expressly understood and agreed
that the obligations of the Collateral Agent as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Pledge Agreement, are only those expressly set forth in this Pledge
Agreement and in the Loan Agreement. The Collateral Agent shall act hereunder on
the terms and conditions set forth in Article IX of the Loan Agreement.
----------
Section 2.8. Transfer by Pledgor. Pledgor will not sell or
-------------------
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except in
accordance with the terms of the Loan Agreement).
Section 2.9. Termination and Release of Pledge. Upon the
---------------------------------
Pledge Termination Date, the pledge of the Collateral contained in this Article
-------
II shall terminate (provided that all indemnities set forth herein including,
--
without limitation, in Section 2.5 hereof shall survive any such termination)
-----------
and Collateral Agent, at the request and expense of Pledgor, will execute and
deliver to Pledgor a proper instrument or instruments acknowledging the
satisfaction and termination of such pledge, and will duly assign, transfer and
deliver to Pledgor (without recourse and without any representation or warranty
except that it has not previously encumbered or sold such Collateral in
violation of this Agreement) such of the Collateral as may be in the possession
of Collateral Agent and as has not theretofore been sold or otherwise applied or
released pursuant to this Agreement, together with any moneys at the time held
by Collateral Agent hereunder. In the event that any part of the Collateral is
sold in connection with a sale permitted by terms of this Agreement or the Loan
Agreement or is otherwise released at the direction of Lenders, and the proceeds
of such sale or sales or from such release are to be applied in accordance with
the terms of this Agreement or the Loan Agreement to the extent required to be
so applied, Collateral Agent, at the request and expense of Pledgor, will
release such Collateral from this Agreement, and will duly assign, transfer and
deliver to Pledgor (without recourse and without any representation or warranty
except that it has not previously encumbered or sold such Collateral in
violation of this Agreement) such of the Collateral as is then being (or has
been) so sold or released and as may be in possession of Collateral Agent and
has not theretofore been released pursuant to this Agreement.
5
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
Section 3.1. Representations and Warranties. Pledgor
------------------------------
represents and warrants that on the date hereof:
(a) Pledgor, together with [RoCal][[CALPERS], are the sole
members of Calwest.
(b) The Collateral constitutes [ ]% of the outstanding
equity interests in Calwest.
(c) Pledgor is the sole owner of all beneficial interests in
the Collateral, subject to no pledge, lien, mortgage, security
interest, charge, option or other encumbrance whatsoever, except the
liens and security interests created by this Agreement.
(d) This Pledge Agreement creates a valid and enforceable
security interest in the Limited Liability Company Interests in favor of
Collateral Agent for the benefit of Lenders to secure the Obligations. Upon the
filing of UCC financing statements in the office of the Secretary of State of
the State[s] of [] and [] naming the Pledgor as debtor and the Collateral Agent
as secured party and properly identifying the Collateral (and the payment of any
applicable fees thereto), the Collateral Agent will have a perfected first
priority security interest in the Limited Liability Company Interests.
Section 3.2. Covenants. (a) Pledgor hereby covenants and
---------
agrees that it will use its best efforts to defend Collateral Agent's right,
title and security interest in and to the Collateral and the respective proceeds
thereof against the claims and demands of all persons whomsoever.
(b) Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Loan Document.
(c) Pledgor covenants and agrees that it will take no action
which would cause any of the representations contained in Section 3.1 to fail to
-----------
be true at any time.
ARTICLE IV
----------
MISCELLANEOUS
-------------
Section 4.1. Survival. This Agreement and all covenants,
--------
agreements, representations and warranties made hereinand in the certificates
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and shall continue in full force and effect so long as any portion
of the Obligations is outstanding and unpaid or such longer period as is set
forth herein. Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the permitted successors and
permitted assigns of such party. All
6
covenants, promises and agreements in this Agreement contained, by or on behalf
of Pledgor, shall inure to the benefit of Xxxxxxx and their respective
successors and assigns.
Section 4.2. GOVERNING LAW. (A) THIS AGREEMENT SHALL BE
-------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST PLEDGOR,
LENDERS, ADMINISTRATIVE AGENT OR COLLATERAL AGENT ARISING OUT OF OR RELATING TO
THIS AGREEMENT MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW
YORK. EACH PLEDGOR HEREBY (i) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM, AND (ii) IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
Section 4.3. Modification; Waiver in Writing. This Agreement
-------------------------------
may not be amended or waived, nor shall any consent or approval of Collateral
Agent be granted hereunder, unless such amendment, waiver, consent or approval
is in writing signed by Collateral Agent and Pledgor.
Section 4.4. Notices. All notices, consents, approvals and
-------
requests required or permitted hereunder shall be given in writing and shall be
effective for all purposes if delivered in any of the methods specified in the
Loan Agreement to the addresses set forth on the first page hereof or at such
other address as may be provided by written notice pursuant to this Section 4.4.
Section 4.5. Severability. Wherever possible, each provision
------------
of this Agreement shall be interpreted in suchmanner as to be effective and
valid under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
Section 4.6. Counterparts. This Agreement may be executed in
------------
any number of counterparts, each of which when so executed and delivered shall
be an original, but all of which shall together constitute one and the same
instrument.
[Section 4.7. Limitation on Liability. Collateral Agent, on
-----------------------
behalf of Xxxxxxx, hereby agrees by its acceptance hereof, that Pledgor
hereunder shall be limited to its interest in the Limited Liability Company
Interests and Pledgor shall have no personal liability hereunder except for any
costs relating to enforcement by the Collateral Agent of (i) the security
interests granted hereunder by Pledgor or (ii) other obligations of Pledgor
hereunder.]/2/
---------------------------
/2/ To be deleted in Parent Pledge Agreement executed by RoCal.
7
IN WITNESS WHEREOF, Xxxxxxx has caused this Agreement to be
duly executed by its duly authorized representative, all as of the day and year
first above written.
[STATE OF CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM, a unit of the State and
Consumer Services Agency of the State of California
By:
-----------------------------------------------
Name:
Title:]
[XXXXX, X.X.X. a Delaware limited liability company
By: RREEF America L.L.C. its Manager
By:
-------------------------------------------
Name:
Title:]
EXHIBIT E
---------
FORM OF OMNIBUS SUBSIDIARY GUARANTEE
------------------------------------
OMNIBUS SUBSIDIARY GUARANTEE/1/
-------------------------------
THIS OMNIBUS SUBSIDIARY GUARANTEE (this "Guarantee"), dated as
---------
of _____________, 2001, is entered into by each of the undersigned (each a
"Restricted Subsidiary") for the benefit of certain Lenders pursuant to the Loan
---------------------
Agreement (as defined below) and [LaSalle Bank National Association], as the
Collateral Agent for such Lenders (the "Collateral Agent").
----------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, each Restricted Subsidiary party hereto is a direct
or indirect Subsidiary (as defined in the Loan Agreement) of Calwest Industrial
Properties LLC ("Calwest");
-------
WHEREAS, Calwest, together with Rooster Acquisition Corp., as
the initial Borrowers, and the Collateral Agent have entered into that certain
Loan Agreement, dated as of the date hereof, by and among the initial Borrowers,
[________], as a Lender, Xxxxxxx Xxxxx Mortgage Company, as Administrative Agent
(the "Administrative Agent"), the Collateral Agent, and the other Lenders from
--------------------
time to time party thereto (as the same may be extended, renewed, supplemented
or modified, the "Loan Agreement"; capitalized terms used herein and not defined
--------------
having the meanings ascribed thereto in the Loan Agreement); and
WHEREAS, the Lenders have conditioned their making of the Loan
on certain conditions including, among other things, the guarantee by each
Restricted Subsidiary of the obligations of the Borrowers under the Loan
Documents;
NOW, THEREFORE, in consideration of the benefits accruing to
each Restricted Subsidiary, the receipt and sufficiency of which are hereby
acknowledged, each Restricted Subsidiary hereby makes the following
representations and warranties to and for the benefit of, and hereby covenants
and agrees with, the Collateral Agent, the Administrative Agent and the Lenders
as follows:
ARTICLE I
GUARANTEE
---------
1.1. Guarantee of Obligations. (a) Each Restricted Subsidiary,
------------------------
jointly and severally, irrevocably and unconditionally guarantees to the
Lenders, (i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of the Indebtedness of the Borrowers
under the Loan Agreement (including obligations which, but for any automatic
stay under Section 362(a) of the Bankruptcy Code, would become due), and (ii)
----------------------------
/1/ Following the Trust Merger, a substantially identical Guarantee is
required to be executed and delivered by the Restricted Subsidiaries of the
Operating Partnership.
1
the prompt payment and performance of and compliance with all other of
Borrowers' obligations now existing or hereafter arising under the Loan
Agreement, (all such obligations being herein collectively called the
"Guaranteed Obligations"). Each Restricted Subsidiary understands, agrees and
----------------------
confirms that the Lenders may enforce this Guarantee up to the full amount of
the Guaranteed Obligations against any Restricted Subsidiary without proceeding
against any other Restricted Subsidiary, any Borrower or any security for the
Guaranteed Obligations and without proceeding under any other guarantee covering
all or a portion of the Guaranteed Obligations.
1.2. Obligations Joint and Several, Unconditional. Each
--------------------------------------------
Restricted Subsidiary, jointly and severally, unconditionally and irrevocably,
guarantees the payment in lawful money of the United States any and all
Guaranteed Obligations of the Borrowers to the Lenders upon demand by the
Administrative Agent during the continuance of an Event of Default of Borrowers
under the Loan Agreement. Each Restricted Subsidiary hereby agrees that this
Guarantee is a continuing guarantee of payment and performance and not a
guarantee of collection. The Lenders may at any time and from time to time
without the consent of any Restricted Subsidiary, without incurring
responsibility to any Restricted Subsidiary and without impairing or releasing
the obligations of any Restricted Subsidiary hereunder, upon or without any
terms or conditions and in whole or in part (in each case, in accordance with
the Loan Agreement):
(i) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations, any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guarantee
herein made shall apply to the Guaranteed Obligations as so changed,
extended, renewed or altered;
(ii) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset there against;
(iii) exercise or refrain from exercising any rights against any
Borrower or others or otherwise act or refrain from acting;
(iv) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of any Borrower to
creditors of such Borrower;
(v) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of any Borrower to the Lenders regardless
of what liabilities of such Borrower remain unpaid;
(vi) consent to or waive any breach of, or any act, omission or
default under, this Guarantee or the Loan Agreement or any of the
instruments or agreements referred to
2
therein, or otherwise amend, modify or supplement this Guarantee or the
Loan Agreement or any of such other instruments or agreements; and/or
(vii) act or fail to act in any manner referred to in this
Guarantee which may deprive such Restricted Subsidiary of its right to
subrogation against the Borrowers to receive full indemnity for any
payments made pursuant to this Guarantee.
No invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor shall affect, impair or be a
defense to this Guarantee, and this Guarantee shall be primary, absolute and
unconditional notwithstanding the occurrence of any event or the existence of
any other circumstances which might constitute a legal or equitable discharge of
a surety or guarantor (except payment in full of the Guaranteed Obligations).
Each Restricted Subsidiary hereby waives notice of acceptance of this Guarantee
and notice of any liability to which it may apply, and waives promptness,
diligence, presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking of other action by the
Collateral Agent, the Administrative Agent or any other Lender against, and any
other notice to, any party liable thereon (including such Restricted Subsidiary
or any other guarantor of the Borrowers).
1.3. Obligations Exclusive. The liability of each Restricted
---------------------
Subsidiary hereunder is exclusive and independent of any security for or other
guarantee of the Indebtedness of the Borrowers whether executed by such
Restricted Subsidiary, any other Restricted Subsidiary, any other guarantor or
by any other party, and the liability of each Restricted Subsidiary hereunder
shall not be affected or impaired by (i) any direction as to application of
payment by the Borrowers or by any other party, (ii) any other continuing or
other guarantee, undertaking or maximum liability of a guarantor or of any other
party as to the indebtedness of any Borrower, (iii) any payment on or in
reduction of any such other guarantee or undertaking except (subject to clause
(v) below) payment in full of the Guaranteed Obligations, (iv) any dissolution,
termination or increase, decrease or change in personnel by any Borrower or (v)
any payment made to any Lender on the indebtedness which any Lender repays to
any Borrower pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and each Restricted
Subsidiary waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.
1.4. Obligations Independent. The obligations of each
-----------------------
Restricted Subsidiary hereunder are independent of the obligations of any other
Restricted Subsidiary, any other guarantor or the Borrowers, and a separate
action or actions may be brought and prosecuted against each Restricted
Subsidiary whether or not action is brought against any other Restricted
Subsidiary, any other guarantor or the Borrowers and whether or not any other
Restricted Subsidiary, any other guarantor of the Borrowers or the Borrowers be
joined in any such action or actions.
1.5. Limit of Liability. Notwithstanding anything to the
------------------
contrary contained in this Guarantee, the obligations and liabilities of each of
the Restricted Subsidiaries pursuant to this Guarantee and the Note shall at all
times be subject to each such Restricted Subsidiary's Limit of Liability. The
following terms as used herein have the meaning indicated, all such definitions
to be equally applicable to the singular and plural forms of the terms defined:
3
(i) "Limit of Liability" shall mean, with respect to any
------------------
Restricted Subsidiary, as of the Determination Date for such Restricted
Subsidiary, the sum of (without duplication):
(A) an amount equal to the sum of the proceeds
of each Extension of Credit (or portion
thereof) which are used to make a Valuable
Transfer to such Restricted Subsidiary, plus
----
(B) interest on such amount at the rate or rates
specified in the Loan Agreement plus
----
(C) the greatest of (1) ninety-five percent
(95%) of the Adjusted Net Worth of such
Restricted Subsidiary at the date of the
execution of this Guarantee before giving
effect to any Extensions of Credit made on
such date, (2) ninety-five percent (95%) of
the Adjusted Net Worth of such Restricted
Subsidiary at the Determination Date for
such Restricted Subsidiary and (3) an amount
that would not constitute a fraudulent
conveyance at the time of (a) incurrence of
the obligations of such Restricted
Subsidiary under this Guarantee or (b)
performance by such Restricted Subsidiary of
its obligations under this Guarantee.
There shall be deducted in determining the Limit of Liability for any
Restricted Subsidiary (a) amounts, if any, collected from such
Restricted Subsidiary in respect of the Guaranteed Obligations by or on
behalf of any holder of the Guaranteed Obligations pursuant to any Loan
Document (other than this Guarantee), plus (b) the amounts, if any,
----
collected in respect of the Guaranteed Obligations by or on behalf of
any holder of the Guaranteed Obligations from any Subsidiary of such
Restricted Subsidiary pursuant to any Loan Document (including this
Guarantee).
(ii) "Adjusted Net Worth" shall mean, with respect to any
------------------
Restricted Subsidiary, as of any date of determination thereof, the
excess, if any, of (i) the amount of the "present fair salable value"
of the assets of such Restricted Subsidiary as of the date of such
determination, over (ii) the amount of all "liabilities of such
Restricted Subsidiary, contingent or otherwise" as of the date of such
determination, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors.
(iii) "Determination Date" shall mean, with respect to any
------------------
Restricted Subsidiary, the earlier of (A) the date of commencement of a
case under Title 11 of the United States Code in which such Restricted
Subsidiary is a debtor and (B) the date enforcement hereunder is sought
with respect to such Restricted Subsidiary.
(iv) "Extension of Credit" shall mean (A) all loans or advances
-------------------
made to the Borrowers or any Restricted Subsidiary under any Loan
Document, (B) all other extensions of credit to or for the benefit of
the Borrower or any Restricted Subsidiary
4
under any Loan Document and (C) to the extent not otherwise included in
the foregoing, all Guaranteed Obligations.
(v) "Valuable Transfer" shall mean, with respect to any
-----------------
Restricted Subsidiary, (A) all loans, advances or capital contributions
made to such Restricted Subsidiary or any Subsidiary of such Restricted
Subsidiary with proceeds of Guaranteed Obligations, (B) all
acquisitions from such Restricted Subsidiary or a Subsidiary of such
Restricted Subsidiary of debt securities or other obligations of such
Restricted Subsidiary or any Subsidiary of such Restricted Subsidiary,
or the retirement by such Restricted Subsidiary or such Subsidiary of
debt securities or other obligations, with proceeds of Guaranteed
Obligations, (C) all acquisitions of property (as measured by the fair
market value of such property) with proceeds of Guaranteed Obligations
and transferred, absolutely and not as collateral, to such Restricted
Subsidiary or any Subsidiary of such Restricted Subsidiary and (D) the
receipt of any quantifiable economic benefits not included in clauses
(A) through (C) above, but included in accordance with applicable
federal and state laws governing determinations of the insolvency of
debtors, accruing to such Restricted Subsidiary as a result of the
incurrence of Guaranteed Obligations.
1.6. Remedies. This Guarantee is a continuing one and all
--------
liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. No failure or
delay on the part of any Lender in exercising any right, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein expressly specified are cumulative and not
exclusive of any rights or remedies which any Lender would otherwise have. No
notice to or demand on any Restricted Subsidiary in any case shall entitle such
Restricted Subsidiary to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Lender to any other or
further action in any circumstances without notice or demand. It is not
necessary for any Lender to inquire into the capacity or powers of any Borrower
or any of their respective Restricted Subsidiaries or the officers, directors,
partners or agents acting or purporting to act on behalf of either of them, and
any Indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
1.7. Subordination. Any indebtedness of any Borrower now or
-------------
hereafter held by any Restricted Subsidiary is hereby subordinated to the
Indebtedness of the Borrowers to the Lenders; and if the Administrative Agent,
after an Event of Default has occurred, so requests, such indebtedness of any
Borrower to any Restricted Subsidiary shall be collected, enforced and received
by such Restricted Subsidiary as trustee for the Lenders and be paid over to the
Lenders on account of the Indebtedness of the Borrowers to the Lenders, but
without affecting or impairing in any manner the liability of such Restricted
Subsidiary under the other provisions of this Guarantee.
1.8. Certain Additional Waivers. Each Restricted Subsidiary
--------------------------
waives any right (except as shall be required by applicable statute and cannot
be waived) to require the Lenders to: (A) proceed against the Borrowers, any
other Restricted Subsidiary, any other guarantor of any Borrower or any other
party; (B) proceed against or exhaust any security held from any
5
Borrower, any other Restricted Subsidiary, any other guarantor of any Borrower
or any other party; or (C) pursue any other remedy in the Lenders' power
whatsoever. Each Restricted Subsidiary waives, to the extent permitted by
applicable law, any defense based on or arising out of any defense of any
Borrower, any other Restricted Subsidiary, any other guarantor of any Borrower
or any other party other than payment in respect of the Guaranteed Obligations
or that the Guaranteed Obligations are not yet due and payable, including,
without limitation, any defense based on or arising out of the disability of any
Borrower, any other Restricted Subsidiary, any other guarantor of any Borrower
or any other party, or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
any Borrower other than payment in respect of the Guaranteed Obligations. The
Lenders may, at their election, foreclose on any Collateral held by the
Collateral Agent or the Lenders by one or more judicial or nonjudicial sales to
the extent such sale is permitted by applicable law, or exercise any other right
or remedy the Lenders may have against the Borrowers or any other party, or any
security, without affecting or impairing in any way the liability of any
Restricted Subsidiary hereunder except to the extent the Guaranteed Obligations
have been paid. Each Restricted Subsidiary waives, to the extent permitted by
applicable law, all presentments, demands for performance, protests and notices,
including, without limitation, notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Guarantee, and notices of the
existence, creation or incurring of new or additional indebtedness. Each
Restricted Subsidiary assumes all responsibility for being and keeping itself
informed of each Borrower's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations
and the nature, scope and extent of the risks which such Restricted Subsidiary
assumes and incurs hereunder, and agrees that neither the Lenders nor the
Collateral Agent or the Administrative Agent shall have any duty to advise any
Restricted Subsidiary of information known to them regarding such circumstances
or risks. Until such time as the Guaranteed Obligations have been paid in full,
each Restricted Subsidiary hereby waives all rights of subrogation which it may
at any time otherwise have as a result of this Guarantee (whether contractual,
under Section 509 of the Bankruptcy Code, or otherwise) to the claims of the
Lenders against the Borrowers, any other Restricted Subsidiary or any other
guarantor of the Guaranteed Obligations and all contractual, statutory or common
law rights of reimbursement, contribution or indemnity from any Borrower or any
other Restricted Subsidiary which it may at any time otherwise have as a result
of this Guarantee.
ARTICLE II
COVENANTS; REPRESENTATIONS AND WARRANTIES
-----------------------------------------
2.1. Covenants Incorporated By Reference. The covenants set
-----------------------------------
forth in Articles V and VI of the Loan Agreement, except for those contained in
Sections 5.12 and 5.15, are hereby incorporated by reference as if set forth
herein in full and each of the Restricted Subsidiaries hereby agrees to be bound
by such covenants as if it were a party thereto, including without limitation,
the covenants set forth in Sections 6.1, 6.2 and 6.3 of the Loan Agreement.
2.2. Remedies. In the event that any Restricted Subsidiary
--------
shall breach any of the covenants set forth in this Article II, in addition to
it constituting an Event of Default under the Loan Agreement (following any
applicable notice and cure periods provided in the Loan Agreement), all rights,
powers and remedies available to the Lenders and the Collateral Agent at
6
law or in equity may be exercised. Without in any way limiting the foregoing,
the Collateral Agent may (but shall not be obligated to) expend any amount
necessary to secure the release of any Lien on any Property and any other
property, income, profits or any equity interests pledged in violation of the
covenants set forth in this Article II or to secure the reconveyance of such
Property, income, profits or equity interests, and the Restricted Subsidiaries
shall be liable, jointly and severally, for such amounts expended by the
Collateral Agent and shall pay such amounts to the Collateral Agent on demand.
Each right, power and remedy of the Collateral Agent provided for in this
Guarantee or the Loan Agreement now or hereafter existing at law or in equity or
by statute shall be cumulative and concurrent and shall be in addition to every
other such right, power or remedy. The exercise or beginning of the exercise by
the Collateral Agent of any one or more of the rights, powers or remedies
provided for in this Guarantee or the Loan Agreement or now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by the Collateral Agent or any Lender of all such
other rights, powers or remedies, and no failure or delay on the part of the
Collateral Agent or any Lender to exercise any such right, power or remedy shall
operate as a waiver thereof.
2.3. Indemnity. Each Restricted Subsidiary jointly and
---------
severally agrees (i) to indemnify and hold harmless the Collateral Agent, the
Administrative Agent and the Lenders from and against any and all claims,
demands, losses, judgments and liabilities (including liabilities for penalties)
of whatsoever kind or nature, and (ii) to reimburse the Collateral Agent, the
Administrative Agent and the Lenders for all reasonable costs and expenses,
including reasonable attorneys' fees, growing out of or resulting from this
Guarantee or the exercise by the Collateral Agent of any right or remedy granted
to it hereunder or under the Loan Agreement except, in each case, (a) with
respect to those arising from the Collateral Agent's gross negligence, bad
faith, fraud or willful misconduct, subject however, to the limitations of
Section 8.13 of the Loan Agreement, and (b) with respect to any amounts for
which the Collateral Agent, the Administrative Agent and the Lenders have been
previously reimbursed by the Borrowers. If and to the extent that the
obligations of any Restricted Subsidiary under this Section 2.3 are
-----------
unenforceable for any reason, each Restricted Subsidiary hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
2.4 Representations and Warranties of Each Restricted
-------------------------------------------------
Subsidiary. The representations and warranties set forth in Article IV of the
----------
Loan Agreement are hereby incorporated by reference as if set forth herein in
full and each of the Restricted Subsidiaries makes such representations and
warranties with respect to it and its Properties.
ARTICLE III
MISCELLANEOUS
-------------
3.1. Notices, Etc. All notices and other communications
-------------
hereunder shall be in writing and shall be delivered or mailed by first class
mail, postage prepaid, addressed (i) if to any Restricted Subsidiary, at the
address of the Borrowers specified in the Loan Agreement, (ii) if to the
Collateral Agent or any Lender, at the address specified in the Loan Agreement.
7
3.2. Waiver; Amendment. None of the terms and conditions of
-----------------
this Guarantee may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Restricted Subsidiary and the
Collateral Agent (with the consent of the Required Lenders or, to the extent
required by the Loan Agreement, all of the Lenders); provided, however, that no
-------- -------
such change, waiver, modification or variance shall be made to this Section 3.2
-----------
without the consent of each Lender adversely affected thereby.
3.3. Successors and Assigns. This Guarantee shall be binding
----------------------
upon each Restricted Subsidiary, its successors and assigns (provided, however,
-------- -------
that no Restricted Subsidiary shall assign any of its rights or Guaranteed
Obligations hereunder without the prior written consent of the Administrative
Agent), and shall inure, together with the rights and remedies of the Collateral
Agent hereunder, to the benefit of the Collateral Agent, the Lenders and their
respective successors, transferees and assigns.
3.4. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
3.5. Headings. The headings of the several sections and
--------
subsections in this Guarantee are for purposes of reference only and shall not
limit or define the meaning hereof. This Guarantee may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. In the event that any provision of this
Guarantee shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Guarantee which shall
remain binding on all parties hereto.
3.6. Waiver of Jury Trial. Each Restricted Subsidiary and the
--------------------
Collateral Agent, to the fullest extent permitted by law, each hereby
irrevocably waives all right to a trial by jury in any action, proceeding or
counterclaim arising out of or relating to this agreement or the transactions
contemplated hereby.
8
IN WITNESS WHEREOF, each Restricted Subsidiary has caused this
Guarantee to be executed by their duly elected officers duly authorized as of
the date first above written.
[RESTRICTED SUBSIDIARIES]
By: _______________________________
Name:
Title:
EXHIBIT F
---------
FORM OF ASSUMPTION AGREEMENT
----------------------------
ASSUMPTION AGREEMENT
This Assumption Agreement (this "Agreement") is made and entered
---------
into as of this ___ day of _____________, 2001, by and among Calwest Industrial
Properties, LLC, a California limited liability company ("Calwest"), [Wyoming],
-------
a Maryland real estate investment trust ("Wyoming"), and successor by merger to
-------
Rooster Acquisition Corp., a Maryland corporation ("Rooster Corp."), Wyoming,
------------
L.P., a Delaware limited partnership ("Wyoming OP"), __________________, a
----------
__________________, as a Lender, Xxxxxxx Xxxxx Mortgage Company, a New York
limited partnership, as Administrative Agent (the "Administrative Agent") and
--------------------
LaSalle Bank National Association, a national banking association, as Collateral
Agent (the "Collateral Agent") for the benefit of Lenders.
----------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, ______________ made a loan (the "Loan") to Calwest and
----
Rooster Corp., as the initial Borrowers, pursuant to that certain Loan Agreement
dated as of _____________, 2001 by and among the initial Borrowers,
_______________, as a Lender, the Administrative Agent, the Collateral Agent and
the other Lenders from time to time party to the Loan Agreement (as the same may
be amended, restated, supplemented or otherwise modified from time to time, the
"Loan Agreement"; capitalized terms used herein and not otherwise defined shall
--------------
have the meanings given such terms in the Loan Agreement) for the purpose, among
other things, of financing the consummation of the transactions described in the
Merger Agreement (the "Merger");
------
WHEREAS, as of the date hereof, the Merger has been consummated
and Rooster Corp. has been merged with and into Wyoming and the separate
corporate existence of Rooster Corp. has ceased and Wyoming is continuing as the
surviving entity; and
WHEREAS, Wyoming owns all of the outstanding general partnership
interests in Wyoming OP;
WHEREAS, as contemplated in Section 1.1(c) of the Loan Agreement,
--------------
upon consummation of the Merger, the Lenders, subject to the satisfaction of
certain conditions set forth in the Loan Agreement, will make the Operating
Partnership Advance to each of Wyoming and Wyoming OP and thereafter each of
them shall become a "Borrower" under the Loan Agreement and the other Loan
Documents; and
WHEREAS, simultaneously with the execution hereof, Xxxxxxx shall
make the Operating Partnership Advance to Wyoming and Wyoming OP;
NOW THEREFORE, in consideration of the mutual promises and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Wyoming OP as a Borrower. Each of Wyoming and Wyoming OP
------------------------
hereby confirms receipt of the Operating Partnership Advance and agrees that
from and after the date
hereof, each of them shall be a Borrower under the Loan Agreement and the other
Loan Documents with the joint and several irrevocable obligation to pay, perform
and discharge in full, all of the duties, obligations, liabilities and
responsibilities of a Borrower under and pursuant to the Loan Agreement and the
other Loan Documents (including, without limitation, the Cooperation Agreement)
as they relate to Wyoming, Wyoming OP and their respective Subsidiaries or any
Properties of Wyoming, Wyoming OP or any of their respective Subsidiaries. Each
of Wyoming and Wyoming OP shall, at its sole cost and expense, enter into such
other documents or instruments as may be requested by Administrative Agent to
further confirm the foregoing, including, but not limited to, executing one or
more Notes in the aggregate amount of and evidencing the Operating Partnership
Advance.
2. Representations and Warranties. Each of Wyoming and Wyoming
------------------------------
OP, as of the date hereof, hereby makes the representations and warranties set
forth in Article IV of the Loan Agreement as the same apply to itself, its
----------
Subsidiaries and any Properties owned by it or its Subsidiaries, which
representations and warranties are hereby incorporated by reference as if set
forth herein in full.
3. Covenants. Each of Wyoming and Wyoming OP, as of the date
---------
hereof, hereby agrees to be bound by all of the terms and provisions of the Loan
Agreement and the other Loan Documents, including without limitation, the
covenants and agreements set forth in Articles V and VI of the Loan Agreement
---------- --
(which covenants and agreements are hereby incorporated by reference as if set
forth herein in full), as such covenants and agreements apply to Wyoming,
Wyoming OP or any of their respective Subsidiaries or any Properties of Wyoming,
Wyoming OP or any of their respective Subsidiaries; provided that with respect
--------
to the covenants set forth in Section 5.16 of the Loan Agreement, to the extent
------------
Wyoming, Wyoming OP or any of their respective Subsidiaries shall fail to fully
comply with the provisions thereof as of the date hereof, each of Wyoming and
Wyoming OP on behalf of itself and its Subsidiaries hereby covenants and agrees
that it will comply (and cause its Subsidiaries to comply) with such
requirements as soon as practicable after the date hereof.
4. Counterparts. This Agreement may be executed in counterparts,
------------
each of which when so executed shall be deemed to be an original and both of
which when taken together shall constitute one and the same agreement.
5. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
6. Benefit of Agreement. This Agreement will inure to the benefit
--------------------
of and be binding upon the parties hereto and their respective successors and
assigns.
2
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives on the date
first above written.
[ ], as a Lender
By: ___________________________________
Name:
Title:
CALWEST INDUSTRIAL PROPERTIES, LLC, as a
Borrower
By: RREEF America L.L.C., its Manager
By: ___________________________________
Name:
Title:
[WYOMING], as a Borrower
By: ___________________________________
Name:
Title:
WYOMING, L.P., as a Borrower
By: ___________________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE COMPANY, as
Administrative Agent
By: Xxxxxxx Xxxxx Real Estate Funding
Corp., its General Partner
By:________________________________
Authorized Signatory
LaSALLE BANK NATIONAL ASSOCIATION, as
Collateral Agent
By: ___________________________________
Name:
Title:
EXHIBIT G
---------
FORM OF COOPERATION AGREEMENT
-----------------------------
COOPERATION AGREEMENT
Cooperation Agreement, dated as of [________], 2001 (this "Agreement"),
---------
between Calwest Industrial Properties, LLC, a California limited liability
company having an address at 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000-5853 ("Calwest"), and Rooster Acquisition Corp., a Maryland
-------
corporation, having an address at 000 Xxxxxxxxxx Xxxxxx, 00/xx/ Xxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000-5853 ("Rooster Corp."), and, together with Calwest
------------
and their respective permitted successors and assigns and any additional
borrowers from time to time party to the Loan Agreement, the "Borrowers"), and
---------
Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership having an address
at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 0000, as Administrative Agent under the
Loan Agreement (as defined below) ("Administrative Agent") for the benefit of
--------------------
the Lenders under the Loan Agreement.
WHEREAS, the Lenders have agreed to provide certain financing (the "Loan")
----
to Borrowers pursuant to the Loan Agreement, dated as of [________], 2001, among
Rooster Corp. and Calwest as the initial Borrowers, [________], as a Lender,
GSMC, as Administrative Agent, LaSalle Bank National Association, as Collateral
Agent, and the other Lenders from time to time party thereto (as the same may be
amended from time to time,the "Loan Agreement"; all terms used but not defined
--------------
herein shall have the meaning given such terms in the Loan Agreement); and
WHEREAS, it is contemplated that, subsequent to the funding of all or a
portion of the Loan by Xxxxxxx, the Loan may be restructured, and the Loan
Documents amended, to facilitate a securitization or syndication of the Loan;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrowers hereby agree as follows:
Section 1. Obligation to Cooperate. Borrowers hereby agree that they and
-----------------------
(as applicable) each of their members, principals, representatives, affiliates
and controlling persons (collectively, "Persons") shall use commercially
-------
reasonable efforts, at the Administrative Agent's request (but with no change in
the liability or obligations of the Borrowers under the Loan Documents), to
cooperate with the Administrative Agent's efforts to arrange for the sale of
direct or indirect interests in the Loan including, without limitation, any
Assignments, Participations or securitization of all or any portion thereof
(collectively, a "Syndication"), in accordance with the market standards to
-----------
which the Administrative Agent customarily adheres. Without limiting the
generality of the foregoing, Borrowers agree to:
(a) promptly upon request of the Administrative Agent, execute such
restatements, amendments, supplements, replacements or other modifications
to the Loan Documents as may be requested by the Administrative Agent in
order to permit or facilitate a Syndication including, without limitation,
(i) a bifurcation of the Loan into a senior loan and a junior loan,
provided that Borrowers' obligations are not thereby increased and their
rights are not thereby decreased, or (ii) a division of the loan into two
or more notes or components (which notes or note components may be assigned
different
1
spreads, so long as the weighted average interest rate equals the
Interest Rate on the Loan);
(b) cooperate fully and in good faith with the preparation,
completion, execution and delivery of disclosure documents containing
information regarding the Loan, Borrowers and Borrowers' assets
(including any assets of their respective Subsidiaries) to be
distributed to potential purchasers of interests in the Loan;
(c) provide (or cause its affiliates to provide) the
Administrative Agent with any information regarding Borrowers, their
Subsidiaries or the Properties in Borrowers' possession or which can
reasonably be obtained by Borrowers which can be disclosed without
violating any applicable law or breaching any applicable
confidentiality agreement (including financial statements) that, in
the reasonable opinion of the Administrative Agent, is necessary or
desirable to include in such disclosure documents; and
(d) participate (including participation of senior management of
one or both Borrowers) in bank or investor meetings if requested by
the Administrative Agent.
Section 2. Consent to Disclosure; Indemnification. Borrowers
--------------------------------------
hereby consent (on behalf of themselves and each of their related Persons) to
the inclusion in any disclosure documents relating to a Syndication of any
information relating to Borrowers, their Subsidiaries and the Properties and is
obtained by the Administrative Agent pursuant to this Agreement or in connection
with the origination of the Loan, provided Borrowers have been provided drafts
--------
of such information prior to their disclosure and that no disclosure is made
with respect to information to which Borrowers reasonably object on the grounds
that such information is inaccurate, misleading or confidential. Upon request,
Borrowers will provide the Administrative Agent with written confirmation of the
origin and/or accuracy in all material respects of any such information except
for information furnished by the Administrative Agent and not by Borrowers or
any of their Restricted Subsidiaries.
Section 3. [Reserved].
----------
Section 4. No Third-Party Beneficiary. Borrowers' obligations
--------------------------
under this Agreement run only in favor of Administrative Agent for the benefit
of Xxxxxxx and their respective successors and assigns. No other party may be a
third-party beneficiary of these obligations.
Section 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
-------------
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO CONFLICT OF LAWS PRINCIPLES.
Section 6. Duplicate Originals; Counterparts. This Agreement may
---------------------------------
be executed in any number of duplicate originals and each duplicate original
shall be deemed to be an original. This Agreement may be executed in several
counterparts, each of which counterparts shall be deemed an original instrument
and all of which together shall constitute a single Agreement. The failure of
any party hereto to execute this Agreement, or any counterpart hereof, shall not
relieve the other signatories from their obligations hereunder.
2
IN WITNESS WHEREOF, Xxxxxxxxx have executed and delivered this Agreement as
of the date first hereinabove set forth.
CALWEST INDUSTRIAL PROPERTIES, LLC
By: RREEF America L.L.C., its Manager
By: __________________________________
Name:
Title:
ROOSTER ACQUISITION CORP.
By: __________________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its General Partner
By: __________________________________
Name:
Title:
EXHIBIT H
---------
FORM OF ENVIRONMENTAL INDEMNITY
-------------------------------
ENVIRONMENTAL INDEMNITY AGREEMENT
---------------------------------
ENVIRONMENTAL INDEMNITY AGREEMENT ("Agreement") made as of the ____
---------
day of ___________, 2001 by [CALWEST INDUSTRIAL PROPERTIES, LLC, a California
limited liability company ("Calwest") and each of the Restricted Subsidiaries of
-------
Calwest (together with Calwest and their respective successors and assigns
individually and collectively, as the context requires, the "Indemnitors")]/1/
------------
in favor of XXXXXXX XXXXX MORTGAGE COMPANY, a New York limited partnership, as
Administrative Agent (the "Administrative Agent") and LASALLE BANK NATIONAL
--------------------
ASSOCIATION, a national banking association, as Collateral Agent (the
"Collateral Agent"), and the Lenders from time to time party to the Loan
----------------
Agreement (as defined below) and the other Indemnified Parties (defined below).
RECITALS:
A. WHEREAS, Lenders are prepared to make a loan (the "Loan") to, among
----
others, Calwest, pursuant to a Loan Agreement of even date herewith by and among
the initial Borrowers (including Calwest), ___________, as a Lender, the
Administrative Agent, the Collateral Agent, and the other Lenders from time to
time party to the Loan Agreement (as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time, the "Loan
----
Agreement"), which Loan shall be evidenced by one or more promissory notes (as
---------
the same may be amended, restated, replaced, supplemented or otherwise modified
from time to time, collectively, the "Note").
----
B. WHEREAS, the Lenders are unwilling to make the Loan unless each of
the Indemnitors agrees, jointly and severally, to provide the indemnification,
representations, warranties, covenants and other matters described in this
Agreement for the benefit of the Indemnified Parties.
C. WHEREAS, each of the Indemnitors is entering into this Agreement to
induce the Lenders to make the Loan.
AGREEMENT
NOW THEREFORE, in consideration of the mutual premises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, each of the Indemnitors hereby represents,
warrants, covenants and agrees for the benefit of the Indemnified Parties as
follows:
_____________________
/1/ To be replaced by the following in the Enviromental Indemnity Agreement to
be entered into in connection with the Operating Partnership Advance: Wyoming, a
Maryland real estate investment trust ("Wyoming"), Wyoming, L.P., a Delaware
limited partnership (Wyoming op") and each of the Restricted Subsidiaries of
Wyoming OP (together with Wyoming and Wyoming OP and their respective successors
and assigns, individually and collectively, as the context requires, the
"Indemnitors"). Appropriate conforming changes to the recitals will also be
-----------
made.
1. Environmental Representations And Warranties. The representations
--------------------------------------------
and warranties of Borrowers in Section 4.20 of the Loan Agreement are
------------
incorporated herein by this reference as if fully set forth herein.
2. Environmental Covenants. Each Indemnitor covenants that:
-----------------------
(a) all uses and operations on or of the Properties by the Indemnitors
or any Person affiliated with any Indemnitor shall be in compliance in all
material respects with all applicable Environmental Laws and permits issued
pursuant thereto, except as is not reasonably likely to result in a Material
Adverse Effect;
(b) it shall use commercially reasonable efforts to ensure that uses
and operations by all tenants or other users of the Properties are in material
compliance with all applicable Environmental Laws and permits issued pursuant
thereto, except as is not reasonably likely to result in a Material Adverse
Effect;
(c) it shall use commercially reasonable efforts to ensure that there
shall be no Releases of Hazardous Substances in, on, under or from any of the
Properties in violation of Environmental Law that will have a Material Adverse
Effect;
(d) it shall use commercially reasonable efforts to ensure that there
shall be no Hazardous Substances in, on, or under any of the Properties, except
those that are (i) both (A) in compliance with all applicable Environmental Laws
and with permits issued pursuant thereto, and (B) fully disclosed to
Administrative Agent in writing or routinely used in the operation and
maintenance of industrial properties or (ii) not reasonably likely to result in
a Material Adverse Effect. Notwithstanding the foregoing, it shall not be a
default under the Loan Agreement if any such Hazardous Substances are in, on or
under any of the Properties and any Indemnitor commences the Remediation of the
same in accordance with applicable Environmental Law within thirty (30) days
after written notice thereof and thereafter diligently and expeditiously
proceeds to Remediate the same;
(e) it shall keep the Properties free and clear of all liens and other
encumbrances imposed pursuant to any Environmental Law, whether or not due to
any act or omission any Indemnitor (the "Environmental Liens"), except such
-------------------
liens as are not reasonably likely (individually or in the aggregate) to result
in a Material Adverse Effect, provided that it shall not be a default under the
Loan Documents if any such Environmental Liens are imposed and the Indemnitors
either (i) commence to remove such Environmental Liens within thirty (30) days
after written notice thereof and thereafter diligently and expeditiously
proceeds to remove the same, or (ii) after notice to Administrative Agent,
contest by appropriate legal proceedings, promptly initiated and conducted in
good faith and with due diligence, the imposition of such Environmental Lien, so
long as (A) no Event of Default has occurred and is continuing, (B) such
proceeding shall suspend the enforcement of such Environmental Lien, (C) none of
the Properties nor any part thereof or interest therein will be in danger of
being sold, forfeited, terminated, canceled or lost, and (D) the Indemnitors
shall have furnished such security as may be required in the proceeding, or as
may be reasonably requested by Administrative Agent to
2
insure the payment of any related costs or expenses, together with all interest
or penalties thereon;
(f) it shall fully, expeditiously and reasonably cooperate in all
activities pursuant to Section 3 of this Agreement, including but not limited to
---------
providing all relevant information and making knowledgeable persons available
for interviews;
(g) each Indemnitor shall perform any environmental site assessment or
other investigation of environmental conditions in connection with the
Properties, pursuant to any reasonable request of Administrative Agent made in
the event Administrative Agent reasonably believes that an environmental hazard
exists on any Property (including but not limited to sampling, testing and
analysis of soil, water, air, building materials, and other materials and
substances whether solid, liquid or gas), and share with Administrative Agent
the reports and other results thereof, and Administrative Agent and the other
Indemnified Parties shall be entitled to rely on such reports and other results
thereof;
(h) it shall comply with all reasonable requests of Administrative
Agent made in the event of the presence of any Hazardous Substance or other
environmental hazard on any of the Properties in violation of Environmental Law
to (i) reasonably effectuate Remediation of such Hazardous Substance or
condition in violation of applicable Environmental Law; (ii) comply in all
material respects with any applicable Environmental Law; and (iii) comply with
any directive from any applicable Governmental Authority, provided that with
respect to (h)(ii) and (iii) above, after notice to Administrative Agent,
Indemnitors may suspend such compliance and contest by appropriate legal
proceeding, promptly initiated and conducted in good faith and with due
diligence, the applicability of such Environmental Law, and provided further
that (A) no Event of Default (as defined in the Loan Agreement) has occurred and
is continuing, (B) none of the Properties nor any part thereof or interest
therein will be in danger of being sold, forfeited, terminated, canceled or
lost, and (C) Indemnitors shall have furnished the security as may be required
in the proceeding, or as may be reasonably requested by Administrative Agent to
insure the payment of any related costs or expenses, together with all interest
and penalties thereon;
(i) it shall not do, and shall use commercially reasonable efforts to
prevent any tenant or other user of any Property from doing, any act, that is in
material non-compliance of applicable Environmental Law, is contrary to any
requirement of any insurer, constitutes a public or private nuisance,
constitutes waste, or violates any covenant, condition, agreement or easement
relating to any environmental matters and applicable to any of the Properties
and which is reasonably likely, in any such case, to result in a Material
Adverse Effect;
(j) it shall promptly notify Administrative Agent as it becomes aware
of (i) any presence of or Releases of Hazardous Substances in, on, under, or
from any of the Properties likely to have a Material Adverse Effect; (ii) any
material non-compliance with any Environmental Laws related in any way to any of
the Properties likely to have a Material Adverse Effect; (iii) any actual
Environmental Lien; and (iv) any Remediation of environmental conditions
required by a Governmental Authority relating to any of the Properties; and (v)
any written notice or other written communication relating to (A) any Property
of which such
3
Indemnitor becomes aware from any source whatsoever (including but not limited
to a Governmental Authority) relating in any way to Hazardous Substances or
Remediation thereof, (B) possible liability of any Person pursuant to any
Environmental Law with respect to any Property, (C) other environmental
conditions in connection with any Property, or (D) any actual or threatened
administrative or judicial proceedings in connection with any Property and any
environmental matters addressed in this Agreement.
3. Indemnified Rights/Cooperation and Access. In the event that the
-----------------------------------------
Administrative Agent has reasonably believes that there is a violation of
Environmental Law at any of the Properties that will have a Material Adverse
Effect or endanger any tenants or other occupants of such Property, upon
reasonable notice from the Administrative Agent, Indemnitors shall promptly
cause an engineer or consultant satisfactory to Administrative Agent to conduct
any environmental assessment or audit to assess any and all aspects of the
condition giving rise to such belief (the scope of which shall be determined in
the sole and reasonable discretion of Administrative Agent) and take any samples
of soil, groundwater or other water, air, or building materials or any other
invasive testing requested by Administrative Agent and promptly deliver the
results of any such assessment, audit, sampling or other testing to
Administrative Agent; provided, however, that, if such results are not delivered
-------- -------
to Administrative Agent within a reasonable period, upon reasonable notice to
Indemnitors, Administrative Agent and any other Person designated by
Administrative Agent, including but not limited to any receiver, any
representative of a Governmental Authority, and any environmental consultant
shall have the right, but not the obligation, to enter upon any of the
Properties at all reasonable times (subject to the rights of tenants) to assess
any and all aspects of the environmental condition of the applicable Property,
including but not limited to by conducting any environmental assessment or audit
(the scope of which shall be determined in the reasonable discretion of
Administrative Agent) and taking samples of soil, groundwater or other water,
air, or building materials, and reasonably conducting other invasive testing.
Each of the Indemnitors shall cooperate with and provide, upon advance notice to
each of them, Administrative Agent and any such Person designated by
Administrative Agent with such access to such Property.
4. Indemnification. Each of the Indemnitors covenants and agrees,
---------------
jointly and severally, to protect defend, indemnify, release and hold the
Indemnified Parties harmless from and against, any and all Losses and costs of,
Remediation (whether or not performed voluntarily), engineers' fees,
environmental consultants' fees and costs of investigation (including but not
limited to sampling, testing and analysis of soil, water, air, building
materials and other materials and substances whether solid, liquid or gas)
imposed upon, incurred by or asserted against any Indemnified Parties and
directly or indirectly arising out of or in any way relating to any one or more
of the following:
(a) any presence of any Hazardous Substances in, on, above, or under
any of the Properties;
(b) any past, present or threatened Release of Hazardous Substances
in, on, above, under or from any of the Properties;
4
(c) any activity by any Indemnitor, any Person affiliated with any
Indemnitor, or any tenant or other user of any of the Properties in connection
with any use, treatment, storage, holding, existence, disposition or other
Release, generation, production, manufacturing, processing, refining, control,
management, abatement, removal, handling on or at or transfer or transportation
to or from any of the Properties of any Hazardous Substances at any time located
in, under, on or above any of the Properties;
(d) any activity by any Indemnitor, any Person affiliated with any
Indemnitor, or any tenant or other user of any of the Properties in connection
with any actual or proposed Remediation of any Hazardous Substances at any time
located in, under, on or above any of the Properties, whether or not such
Remediation is voluntary or pursuant to court or administrative order, including
but not limited to any removal, remedial or corrective action;
(e) any present non-compliance or violations of any Environmental Laws
(or permits issued pursuant to any Environmental Law) in connection with any of
the Properties or operations thereon, including but not limited to any failure
by any Indemnitor, any Person affiliated with any Indemnitor, or any tenant or
other user of any of the Properties to comply with any order of any Governmental
Authority in connection with any Environmental Laws;
(f) the imposition, recording or filing of any Environmental Lien
encumbering any of the Properties;
(g) any administrative processes or proceedings or judicial
proceedings in any way connected with any matter addressed in this Agreement;
(h) any act of any Indemnitor, any Person affiliated with any
Indemnitor, or any tenant or other user of any of the Properties in arranging
for disposal or treatment, or arranging with a transporter for transport,
disposal or treatment, of Hazardous Substances owned or possessed by any
Indemnitor, any Person affiliated with any Indemnitor or any tenant or other
user of any of the Properties, in each case, and relating to the Properties, at
any disposal or treatment facilities, incineration vessels or sites owned or
operated by another Person and containing such or any similar Hazardous
Substances;
(i) any act of any Indemnitor, any Person affiliated with any
Indemnitor, or any tenant or other user of any of the Properties in accepting
any Hazardous Substances for transport to disposal or treatment facilities,
incineration vessels or sites selected by any Indemnitor or such other users
from which there is a Release, or a threatened Release of any Hazardous
Substance which causes the incurrence of costs for Remediation;
(j) any personal injury, wrongful death, or property or other damage
arising under any statutory or common law or tort law theory by reason of the
wrongful acts or omissions of any Indemnitor, any Person affiliated with any
Indemnitor or any tenant or other user of any of the Properties with respect to
environmental matters, including but not limited to damages assessed for private
or public nuisance or for the conducting of an abnormally dangerous activity on
or near any of the Properties; and
5
(k) any misrepresentation or inaccuracy in any representation or
warranty in this Agreement or material breach or failure to perform any
covenants or other obligations pursuant to this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, the
indemnity provided this Section 4 shall not apply to any Losses, costs of
---------
Remediation or other liabilities of any Indemnified Party in the circumstances
described above relating any Property as to which a Release or other
environmental matter has occurred on, at or under such Property subsequent to
the time the Indemnitors cease to be in possession of such Property as a result
of the exercise of remedies by Lenders (or Collateral Agent on behalf of
Xxxxxxx) of any remedies provided in the Loan Documents.
5. Duty to Defend and Attorneys' and Other Fees and Expenses. Each of
---------------------------------------------------------
the Indemnitors agrees that, upon request by any Indemnified Party, Indemnitors
shall defend such Indemnified Party against any claim (if requested by any
Indemnified Party, in the name of such Indemnified Party) by attorneys and other
professionals reasonably approved by the Indemnified Parties. Notwithstanding
the foregoing, if the defendants in a claim include any Indemnitor and any
Indemnified Party shall have reasonably concluded that (A) there are legal
defenses available to it that are materially different from those available to
such Indemnitor, or (B) the use of the attorneys engaged by such Indemnitor
would present such attorneys with a conflict of interest, such Indemnified Party
may, in its sole and absolute discretion, engage its own attorneys and other
professionals to assume its legal defenses and to defend or assist it, and, at
the option of such Indemnified Party, its attorneys shall control the resolution
of any claim or proceeding against such Indemnified Party, provided that no
compromise or settlement shall be entered without the applicable Indemnitor's
consent, which consent shall not be unreasonably withheld. Upon demand,
Indemnitors shall jointly and severally be liable to, and shall, pay or, in the
sole and absolute discretion of any Indemnified Party, reimburse, such
Indemnified Party for the payment of reasonable fees and disbursements of
attorneys, engineers, environmental consultants, laboratories and other
professionals in connection therewith.
6. Definitions. Capitalized terms used herein and not specifically
-----------
defined herein shall have the respective meanings ascribed to such terms in the
Loan Agreement. As used in this Agreement, the following terms shall have the
following meanings:
The term "Environmental Law" means any and all present and (except for
-----------------
purposes of Section 1) future federal, state and local laws, statutes,
ordinances, rules, regulations and the like, as well as common law, any judicial
or administrative orders, decrees or judgments thereunder, and any permits,
approvals, licenses, registrations, filings and authorizations, in each case as
now or (except for purposes of Section 1) hereafter in effect, relating to the
pollution, protection or cleanup of the environment, relating to the impact of
Hazardous Substances on property, health or safety, or the generation
manufacture, processing, distribution, handling, use, treatment, recycling,
storage, transportation or Release of Hazardous Substances, or the liability for
or costs of other actual or threatened danger to health or the environment. The
term "Environmental Law" includes, but is not limited to, the following
-----------------
statutes, as amended, any successor thereto, and any regulations promulgated
pursuant thereto, and any state or local statutes, ordinances, rules,
regulations and the like addressing similar issues: the Comprehensive
6
Environmental Response, Compensation and Liability Act; the Emergency Planning
and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the
Resource Conservation and Recovery Act (including but not limited to Subtitle I
relating to underground storage tanks); the Clean Water Act; the Clean Air Act;
the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational
Safety and Health Act; the Federal Water Pollution Control Act; the Federal
Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the
National Environmental Policy Act; and the River and Harbors Appropriation Act.
The term "Environmental Law" also includes, but is not limited to, any present
-----------------
and (except for purposes of Section 1 hereof) future federal state and local
laws, statutes ordinances, rules, regulations and the like, as well as common
law, conditioning transfer of property upon a negative declaration or other
approval of a Governmental Authority of the environmental condition of a
property; or requiring notification or disclosure of Releases of Hazardous
Substances or other environmental condition of a property to any Governmental
Authority or other Person, whether or not in connection with transfer of title
to or interest in property.
The term "Hazardous Substances" includes but is not limited to any and
--------------------
all substances (whether solid, liquid or gas) defined, listed, or otherwise
classified as pollutants, hazardous wastes, hazardous substances, hazardous
materials, extremely hazardous wastes, or words of similar meaning or regulatory
effect under any present or (except for Section 1 hereof) future Environmental
Laws or that may have a negative impact on human health or the environment,
including but not limited to petroleum and petroleum products, asbestos and
asbestos-containing materials, polychlorinated biphenyls, lead, radon,
radioactive materials, flammables and explosives, but excluding substances of
kinds and in amounts ordinarily and customarily used or stored in properties
similar to the Properties for the purposes of cleaning or other maintenance or
operations and otherwise in compliance with all Environmental Laws or such
substances at levels that do not exceed that permitted by applicable law, rule
or regulation.
The term "Indemnified Parties" means Lenders, Administrative Agent,
-------------------
Collateral Agent, any Person who is or will have been involved in the
origination of the Loan, any Person who is or will have been involved with the
servicing of the Loan, persons and entities who may hold or acquire or will have
held a full or partial interest in the Loan (including, but not limited to,
custodians, trustees and other fiduciaries who hold or have held a full or
partial interest in the Loan for the benefit of third parties) as well as the
respective officers, directors, employees agents, participants, successors and
assigns of any and all of the foregoing (including but not limited to any other
Person who holds or acquires or will have held a participation or other full or
partial interest in the Loan or the Properties, whether during the term of the
Loan or as a part of or following a foreclosure of the Loan and including, but
not limited to, any successors by merger, consolidation or acquisition of all or
a substantial portion of any Indemnified Party's assets or business).
The term "Legal Action" means any claim, suit or proceeding, whether
------------
administrative or judicial in nature.
The term "Losses" means any losses, damages, costs (including
------
reasonable fees of attorneys, engineers and environmental consultants), fees
(including reasonable fees of attorneys, engineers and environmental
consultants), expenses, claims, suits, judgments, awards, liabilities
7
(including but not limited to strict liabilities), obligations, debts, fines,
penalties, charges, costs of Remediation (whether or not performed voluntarily),
amounts paid in settlement, litigation costs, attorneys' fees, engineers' fees,
environmental consultants' fees, and investigation costs (including but not
limited to costs for sampling, testing and analysis of soil, water, air,
building materials, and other materials and substances whether solid, liquid or
gas), of whatever kind or nature, and whether or not incurred in connection with
any judicial or administrative proceedings, actions, claims, suits, judgments or
awards.
The term "Properties" means the "Properties" identified in the Loan
----------
Agreement owned by the Indemnitors.
The term "Release" with respect to any Hazardous Substance means any
-------
release, deposit, discharge, emission, leaking, leaching, spilling, seeping,
migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing
or other movement of Hazardous Substances in violation of Environmental Law.
The term "Remediation" includes but is not limited to any response,
-----------
remedial, removal, or corrective action; any activity to clean up, detoxify,
decontaminate, contain or otherwise remediate any Hazardous Substance; any
actions to prevent, cure or mitigate any Release of any Hazardous Substance; any
action to comply with any Environmental Laws or with any permits issued pursuant
thereto; any inspection, investigation, study, monitoring, assessment, audit,
sampling and testing, laboratory or other analysis, or evaluation relating to
any Release of Hazardous Substances.
7. Unimpaired Liability. The liability of any Indemnitor under this
--------------------
Agreement shall in no way be limited or impaired by, and each Indemnitor hereby
consents and agrees to and shall be bound by, any amendment, replacement or
modification of the provisions of the Note, the Loan Agreement or any other Loan
Document entered into by (y) any Borrower or any Person who succeeds one or more
of the Borrowers or any Person as owner of the Properties or (z) any other
Person party to such Loan Document. In addition, the liability of Indemnitors
under this Agreement shall in no way be limited or impaired by (i) any
extensions of time for performance required by the Note, the Loan Agreement or
any of the other Loan Documents, (ii) unless a substitute Indemnitor acceptable
to Administrative Agent in its sole discretion has agreed in writing to be bound
by the terms of this Agreement, any sale or transfer of all or part of the
Properties, (iii) the accuracy or inaccuracy of the representations and
warranties made by any Indemnitor under the Note, the Loan Agreement or any of
the other Loan Documents or herein; or (iv) the release of any Indemnitor or any
other Person from performance or observance of any of the agreements, covenants,
terms or condition contained in any of the other Loan Documents by operation of
law, any Lender's or Administrative Agent `s voluntary act, or otherwise, (vi)
the release or substitution in whole or in part of any security for the Note.
8. Enforcement. The Indemnified Parties may enforce the obligations of
-----------
any Indemnitor without first resorting to or exhausting any security or
collateral or without first having recourse to the Note, the Loan Agreement or
any other Loan Documents, through foreclosure proceedings or otherwise. It is
not necessary for an Event of Default to have occurred pursuant to and as
defined in the Loan Agreement for any of the Indemnified Parties to
8
exercise its rights pursuant to this Agreement. Each Indemnitor hereby
acknowledges and agrees that each Indemnitor is, jointly and severally, fully
and personally liable for the obligations thereunder, and any liability
hereunder is not limited to the original or amortized principal balance of the
Loan or the value of the Properties.
9. Survival. The obligations and liabilities of each Indemnitor under
--------
this Agreement shall survive the payment in full of the Indebtedness.
10. Interest. Any amounts payable to any Indemnified Parties under
--------
this Agreement shall become immediately due and payable on demand and, if not
paid within thirty (30) days of such demand, shall bear interest at the lesser
of (a) the Default Rate (as defined in the Loan Agreement) or (b) the maximum
interest rate which Indemnitors may by law pay or the Indemnified Parties may
charge and collect, from the date payment was due.
11. Waivers. Each of the Indemnitors hereby waives (a) any right or
-------
claim of right to cause a marshaling of its assets or to cause Lenders or the
other Indemnified Parties to proceed against any of the security for the Loan
before proceeding under this Agreement against any Indemnitor; (b) all rights
and remedies accorded by applicable law to indemnitors or guarantors, except any
rights of subrogation which Indemnitors may have, provided that the indemnity
provided for hereunder shall neither be contingent upon the existence of any
such rights of subrogation nor subject to any claims or defenses whatsoever
which may be asserted in connection with the enforcement or attempted
enforcement of such subrogation rights including, without limitation, any claim
that such subrogation rights were abrogated by any acts of any of the
Indemnified Parties; (c) the right to assert a counterclaim, other than a
mandatory or compulsory counterclaim, in any action or proceeding brought
against or by any of the Indemnified Parties; (d) notice of acceptance hereof
and of any action taken or omitted in reliance hereon; (e) presentment for
payment, demand of payment, protest or notice of nonpayment or failure to
perform or observe, or other proof, or notice or demand; and (f) all homestead
exemption rights against the obligations hereunder and the benefits of any
statutes of limitations or repose. Notwithstanding anything to the contrary
contained herein, each Indemnitor shall postpone the exercise of any rights of
subrogation with respect to any collateral securing the Loan until the Loan
shall have been repaid in full. No delay by any Indemnified Party in exercising
any right, power or privilege under this Agreement shall operate as a waiver of
any such privilege, power or right.
12. Subrogation. Each of the Indemnitors shall take any and all
-----------
reasonable actions, including institution of legal action against third parties,
necessary or appropriate to obtain reimbursement, payment or compensation from
such persons responsible for any liability arising out of the presence of any
Hazardous Substances at, in, on or under any of the Properties or otherwise
obligated by law to bear the cost. The Indemnified Parties shall be and hereby
are subrogated to all of Indemnitors' rights now or hereafter in such claims.
13. Indemnitors' Representations and Warranties. The Indemnitors
-------------------------------------------
jointly and severally represent and warrant that:
9
(a) each Indemnitor has the full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder; the execution,
delivery and performance of this Agreement by each Indemnitor has been duly and
validly authorized; and all requisite action has been taken by each Indemnitor
to make this Agreement valid and binding upon each Indemnitor;
(b) each Indemnitor's execution of, and compliance with, this
Agreement is in the ordinary course of business of such Indemnitor and will not
result in the breach of any term or provision of the charter, by-laws,
partnership or trust agreement, or other governing instrument of such Indemnitor
or result in the breach of any term or provision of, or conflict with or
constitute a default under, or result in the acceleration of any obligation
under, any agreement, indenture or loan or credit agreement or other instrument
to which any Indemnitor or any Property is subject, or result in the violation
of any law, rule, regulation, order, judgment or decree to which any Indemnitor
or any Property is subject;
(c) to the best of each Indemnitor's knowledge, there is no action,
suit, proceeding or investigation pending or threatened against any Indemnitor
which, either in any one instance or in the aggregate, may result in a Material
Adverse Effect, or which would draw into question the validity of this Agreement
or of any action taken or to be taken in connection with the obligations of each
Indemnitor contemplated herein, or which would be likely to impair materially
the ability of any Indemnitor to perform under the terms of this Agreement;
(d) no Indemnitor believes, nor does any Indemnitor have any reason
or cause to believe, that it cannot perform each and every covenant contained in
this Agreement;
(e) to the best of each Indemnitor's knowledge, no approval,
authorization, order, license or consent of, or registration or filing with, any
Governmental Authority or other person, and no approval, authorization or
consent of any other party is required in connection with this Agreement; and
(f) this Agreement constitutes a valid, legal and binding obligation
f each Indemnitor.
14. No Waiver. No delay by any Indemnified Party in exercising any
---------
right, power or privilege under this Agreement shall operate as a waiver of any
such privilege, power or right.
15. Notice of Legal Actions. Each party hereto shall, within ten (10)
-----------------------
business days of receipt thereof, give notice to the other parties hereto of (i)
any written notice, advice or other communication from any Governmental
Authority or any source whatsoever with respect to Hazardous Substances on, from
or affecting any of the Properties in violation of Environmental Law, and (ii)
any Legal Action brought against such party or related to any of the Properties,
with respect to which Indemnitors may have liability under this Agreement. Such
notice shall comply with the provisions of Section 17 hereof.
16. Transfer of Loan. (a) Any Lender may, at any time, sell, transfer
----------------
or assign the Note, the Loan Agreement, this Agreement and the other Loan
Documents, and any or all
10
servicing rights with respect thereto, or grant participations therein.
Administrative Agent may forward to each purchaser, transferee, assignee,
servicer or participant (the foregoing entities hereinafter collectively
referred to as the "Investor") and each prospective Investor, all documents and
information which Administrative Agent now has or may hereafter acquire relating
to any Indemnitor and any Property, whether furnished by any of the Indemnitors,
any guarantor or otherwise, as Administrative Agent determines necessary or
desirable. Each Indemnitor and any guarantor agree to cooperate with
Administrative Agent, at Administrative Agent's (or the applicable Lender's)
sole cost and expense, in connection with any transfer made or any Securities
created pursuant to this Section, including, without limitation, the delivery of
an estoppel certificate required in accordance with the Loan Agreement and such
other documents as may be reasonably requested by Administrative Agent. Each
Indemnitor shall also, at Administrative Agent's (or the applicable Lender's)
sole cost and expense, furnish, and each Indemnitor and any guarantor hereby
consent to Administrative Agent's furnishing to such Investors or such
prospective Investors, any and all information concerning the financial
condition of any Indemnitor and any guarantor and any and all information
concerning any Property and the Leases as may be reasonably requested by
Administrative Agent, any Investor or any prospective Investor in connection
with any sale, transfer or participation interest.
17. Notices. All notices, consents, approvals and requests required
-------
or permitted hereunder shall be given in writing and shall be effective for all
purposes hereunder if delivered in any of the methods set for the Loan Agreement
and (i) if to any Indemnitor, to the address of the Borrowers specified in the
Loan Agreement, or at such other address as may be provided by any Indemnitor by
notice from time and (ii) if to any Indemnified Party, to the Administrative
Agent or as such other address as may be provided by any Indemnified Party by
notice from time to time.
18. Duplicate Originals; Counterparts. This Agreement may be executed
---------------------------------
in any number of duplicate originals and each duplicate original shall be deemed
to be an original. This Agreement may be executed in several counterparts, each
of which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Agreement. The failure of any party hereto to
execute this Agreement, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.
19. No Oral Change. This Agreement, and any provisions hereof, may
--------------
not be modified, amended, waived, extended, changed, discharged or terminated
orally or by any act or failure to act on the part of any Indemnitor or any
Indemnified Party, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
20. Headings, Etc. The headings and captions of Sections of this
-------------
Agreement are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
21. Number and Gender/Successors and Assigns. All pronouns and any
----------------------------------------
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the person or persons referred to may
require. Without limiting the effect of
11
specific references in any provision of this Agreement, the term "Indemnitors"
shall be deemed to refer to each and every Person comprising Indemnitors from
time to time, as the sense of a particular provision may require, and to include
the successors and assigns of any Indemnitor, all of whom shall be bound by the
provisions of this Agreement, provided that no Indemnitor may assign its
obligations hereunder except with the written consent of Administrative Agent in
its sole discretion. This Agreement shall inure to the benefit of the
Indemnified Parties and their respective successors and assigns forever.
22. Release of Liability. Any one or more parties liable upon or in
--------------------
respect of this Agreement may be released without affecting the liability of any
party not so released.
23. Rights Cumulative. The rights and remedies herein provided are
-----------------
cumulative and not exclusive of any rights or remedies which Lenders have under
the Note, the Loan Agreement or the other Loan Documents or would otherwise have
at law or in equity.
24. Inapplicable Provisions. If any term, condition or covenant of
-----------------------
this Agreement shall be held to be invalid, illegal or unenforceable in any
respect, this Agreement shall be construed without such provision.
25. Governing Law; Waiver of Trial by Jury. (a) THIS AGREEMENT SHALL
--------------------------------------
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST ANY INDEMNITOR
ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE INSTITUTED IN ANY FEDERAL OR
STATE COURT IN NEW YORK, NEW YORK. EACH OF THE INDEMNITORS HEREBY (i)
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM, AND (ii) IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH OF THE INDEMNITORS, TO THE FULLEST EXTENT THAT THEY MAY
LAWFULLY DO SO, XXXXXX AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE
OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT
ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT, OR
ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY EACH OF
THE INDEMNITORS AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH
ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
INDEMNITEE IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE INDEMNITORS.
12
26. Miscellaneous. (a) Wherever pursuant to this Agreement (i)
-------------
Administrative Agent exercises any right given to it to approve or disapprove,
(ii) any arrangement or term is to be satisfactory to Administrative Agent, or
(iii) any other decision or determination is to be made by Administrative Agent,
the decision of Administrative Agent to approve or disapprove, all decisions
that arrangements or terms are satisfactory or not satisfactory and all other
decisions and determinations made by Administrative Agent, shall be in the sole
and absolute discretion of Administrative Agent and shall be final and
conclusive, except as may be otherwise expressly and specifically provided
herein.
(b) Wherever pursuant to this Agreement it is provided that
Indemnitors pay any costs and expenses, such costs and expenses shall include,
but not be limited to, reasonable legal fees and disbursements of Administrative
Agent's retained firms.
[NO FURTHER TEXT ON THIS PAGE]
13
IN WITNESS WHEREOF, this Agreement has been executed by
Indemnitors and is effective as of the day and year first above written.
CALWEST INDUSTRIAL PROPERTIES, LLC
By: RREEF America L.L.C., its Manager
By: __________________________________
Name:
Title:
[RESTRICTED SUBISIDIARIES]
By: __________________________________
Name:
Title:
EXHIBIT I
---------
FORM OF CALWEST GUARANTEE
-------------------------
GUARANTEE
---------
THIS GUARANTEE (this "Guarantee"), dated as of _____________, 2001, is
---------
entered into by Calwest Industrial Properties, LLC (the "Guarantor") for the
---------
benefit of certain Lenders pursuant to the Loan Agreement (as defined below) and
LaSalle Bank National Association, as the Collateral Agent for such Lenders (the
"Collateral Agent").
----------------
W I T N E S S E T H:
- - - - - - - - - --
WHEREAS, _____________ made a loan (the "Loan") to Guarantor and Rooster
----
Acquisition Corp. ("Rooster Corp.") pursuant to that certain Loan Agreement
-------------
dated as of _____________, 2001 by and among Guarantor and Rooster Corp., as
initial Borrowers, ______________, as a Lender, the Administrative Agent, the
Collateral Agent and the other Lenders from time to time party thereto (as the
same may be amended, restated, supplemented or otherwise modified from time to
time, the "Loan Agreement"; capitalized terms used herein and not otherwise
--------------
defined shall have the meanings given such terms in the Loan Agreement), for the
purpose, among other things, of financing the consummation of the transactions
described in the Merger Agreement (the "Merger");
------
WHEREAS, as of the date hereof, the Merger has been consummated and Rooster
Corp. has been merged with and into [Wyoming] ("Wyoming") and the separate
-------
corporate existence of Rooster Corp. has ceased and Wyoming is continuing as the
surviving entity; and
WHEREAS, Wyoming owns all of the outstanding general partnership interests
in Wyoming, L.P. ("Wyoming OP" and, together with Wyoming, the "Wyoming
---------- -------
Borrowers");
---------
WHEREAS, it is a condition to making the Operating Partnership Advance
under the Loan Agreement that, among other things (i) each of Wyoming Borrowers
agree to become a party to and be bound by the terms of the Loan Agreement and
the other Loan Documents as a "Borrower" thereunder and (ii) Guarantor guarantee
the obligations of the Wyoming Borrowers under the Loan Agreement and the other
Loan Documents; and
WHEREAS, on the date hereof, each of the Wyoming Borrowers has satisfied
the conditions described in clause (i) of the foregoing recital and Calwest now
desires to enter into this Guarantee in order to satisfy the condition described
in clause (ii) of the foregoing recital;
NOW, THEREFORE, in consideration of the benefits accruing to the Guarantor,
the receipt and sufficiency of which are hereby acknowledged, the Guarantor
hereby covenants and agrees with, the Collateral Agent, the Administrative Agent
and the Lenders as follows:
ARTICLE I
GUARANTEE
---------
1.1. Guarantee of Obligations. (a) The Guarantor irrevocably and
------------------------
unconditionally guarantees to the Lenders, (i) the full and prompt payment when
due (whether at
1
the stated maturity, by acceleration or otherwise) of the Indebtedness of the
Wyoming Borrowers under the Loan Agreement (including obligations which, but for
any automatic stay under Section 362(a) of the Bankruptcy Code, would become
due), and (ii) the prompt payment and performance of and compliance with all
other of the Wyoming Borrowers' obligations now existing or hereafter arising
under the Loan Agreement or other Loan Documents, (all such obligations being
herein collectively called the "Guaranteed Obligations"). The Guarantor
----------------------
understands, agrees and confirms that the Lenders may enforce this Guarantee up
to the full amount of the Guaranteed Obligations against the Guarantor without
proceeding against the Wyoming Borrowers or any security for the Guaranteed
Obligations and without proceeding under any other guarantee covering all or a
portion of the Guaranteed Obligations.
1.2. Obligations Joint and Several, Unconditional. The Guarantor
--------------------------------------------
unconditionally and irrevocably, guarantees the payment in lawful money of the
United States any and all Guaranteed Obligations upon demand by the
Administrative Agent during the continuance of an Event of Default under the
Loan Agreement. Guarantor hereby agrees that this Guarantee is a continuing
guarantee of payment and performance and not a guarantee of collection. The
Lenders may at any time and from time to time without the consent of the
Guarantor, without incurring responsibility to the Guarantor and without
impairing or releasing the obligations of the Guarantor hereunder, upon or
without any terms or conditions and in whole or in part (in each case, in
accordance with the Loan Agreement):
(i) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew or alter, any of the Guaranteed
Obligations, any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guarantee herein made shall apply to
the Guaranteed Obligations as so changed, extended, renewed or altered;
(ii) sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any
time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
there against;
(iii) exercise or refrain from exercising any rights against the
Wyoming Borrowers or others or otherwise act or refrain from acting;
(iv) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Wyoming Borrowers to their creditors;
(v) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Wyoming Borrowers to the Lenders regardless
of what liabilities of the Wyoming Borrowers remain unpaid;
2
(vi) consent to or waive any breach of, or any act, omission or
default under, this Guarantee or the Loan Agreement or any of the
instruments or agreements referred to therein, or otherwise amend, modify
or supplement this Guarantee or the Loan Agreement or any of such other
instruments or agreements; and/or
(vii) act or fail to act in any manner referred to in this Guarantee
which may deprive the Guarantor of its right to subrogation against the
Wyoming Borrowers to receive full indemnity for any payments made pursuant
to this Guarantee.
No invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor shall affect, impair or be a
defense to this Guarantee, and this Guarantee shall be primary, absolute and
unconditional notwithstanding the occurrence of any event or the existence of
any other circumstances which might constitute a legal or equitable discharge of
a surety or guarantor (except payment in full of the Guaranteed Obligations).
The Guarantor hereby waives notice of acceptance of this Guarantee and notice of
any liability to which it may apply, and waives promptness, diligence,
presentment, demand of payment, protest, notice of dishonor or nonpayment of any
such liabilities, suit or taking of other action by the Collateral Agent, the
Administrative Agent or any Lender against, and any other notice to, any party
liable thereon (including the Guarantor or any other guarantor of the the
Wyoming Borrowers).
1.3. Obligations Exclusive. The liability of the Guarantor hereunder
---------------------
is exclusive and independent of any security for or other guarantee of the
Indebtedness of the Wyoming Borrowers whether executed by the Guarantor, any
other guarantor or by any other party, and the liability of the Guarantor
hereunder shall not be affected or impaired by (i) any direction as to
application of payment by the Wyoming Borrowers or by any other party, (ii) any
other continuing or other guarantee, undertaking or maximum liability of a
guarantor or of any other party as to the Indebtedness of the Wyoming Borrowers,
(iii) any payment on or in reduction of any such other guarantee or undertaking
except (subject to clause (v) below) payment in full of the Guaranteed
Obligations, (iv) any dissolution, termination or increase, decrease or change
in personnel by any Wyoming Borrower or (v) any payment made to any Lender on
the Indebtedness of the Wyoming Borrowers which any Lender repays to the Wyoming
Borrowers pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and the Guarantor
waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding.
1.4. Obligations Independent. The obligations of the Guarantor
-----------------------
hereunder are independent of the obligations of any other guarantor, the Wyoming
Borrowers or the other Borrowers, and a separate action or actions may be
brought and prosecuted against the Guarantor whether or not action is brought
against any other guarantor, the Wyoming Borrowers or any other Borrower and
whether or not any other guarantor of the Wyoming Borrowers or of the Borrowers
or the Wyoming Borrowers or the other Borrowers be joined in any such action or
actions.
1.5. [Intentionally Omitted].
---------------------
1.6. Remedies. This Guarantee is a continuing one and all liabilities
--------
to which it applies or may apply under the terms hereof shall be conclusively
presumed to have been
3
created in reliance hereon. No failure or delay on the part of any Lender in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which any Lender would otherwise have. No notice to or demand on the Guarantor
in any case shall entitle it to any other further notice or demand in similar or
other circumstances or constitute a waiver of the rights of any Lender to any
other or further action in any circumstances without notice or demand. It is not
necessary for any Lender to inquire into the capacity or powers of any Wyoming
Borrower or the officers, directors, partners or agents acting or purporting to
act on behalf of it, and any Indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
1.7. Subordination. Any indebtedness of any Wyoming Borrower now or
-------------
hereafter held by the Guarantor is hereby subordinated to the Indebtedness of
the Wyoming Borrowers to the Lenders; and if the Administrative Agent, after an
Event of Default has occurred, so requests, such indebtedness of the Wyoming
Borrowers to the Guarantor shall be collected, enforced and received by the
Guarantor as trustee for the Lenders and be paid over to the Lenders on account
of the Indebtedness of the the Wyoming Borrowers to the Lenders, but without
affecting or impairing in any manner the liability of the Guarantor under the
other provisions of this Guarantee.
1.8. Certain Additional Waivers. The Guarantor waives any right
--------------------------
(except as shall be required by applicable statute and cannot be waived) to
require the Lenders to: (A) proceed against the Wyoming Borrowers, any other
guarantor of the Wyoming Borrowers or any other party; (B) proceed against or
exhaust any security held from the Wyoming Borrowers, any other guarantor of the
Wyoming Borrowers or any other party; or (C) pursue any other remedy in the
Lenders' power whatsoever. The Guarantor waives, to the extent permitted by
applicable law, any defense based on or arising out of any defense of the
Wyoming Borrowers, any other guarantor of the Wyoming Borrowers or any other
party other than payment in respect of the Guaranteed Obligations or that the
Guaranteed Obligations are not yet due and payable, including, without
limitation, any defense based on or arising out of the disability of any Wyoming
Borrower, any other guarantor of the Wyoming Borrowers or any other party, or
the unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Wyoming Borrowers
other than payment in respect of the Guaranteed Obligations. The Lenders may, at
their election, foreclose on any Collateral held by the Collateral Agent or the
Lenders by one or more judicial or nonjudicial sales to the extent such sale is
permitted by applicable law, or exercise any other right or remedy the Lenders
may have against the Wyoming Borrowers or any other party, or any security,
without affecting or impairing in any way the liability of the Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid. The
Guarantor waives, to the extent permitted by applicable law, all presentments,
demands for performance, protests and notices, including, without limitation,
notices of nonperformance, notices of protest, notices of dishonor, notices of
acceptance of this Guarantee, and notices of the existence, creation or
incurring of new or additional indebtedness. The Guarantor assumes all
responsibility for being and keeping itself informed of the Wyoming Borrowers'
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the
4
nature, scope and extent of the risks which the Guarantor assumes and incurs
hereunder, and agrees that neither the Lenders nor the Collateral Agent or the
Administrative Agent shall have any duty to advise the Guarantor of information
known to them regarding such circumstances or risks. Until such time as the
Guaranteed Obligations have been paid in full, the Guarantor hereby waives all
rights of subrogation which it may at any time otherwise have as a result of
this Guarantee (whether contractual, under Section 509 of the Bankruptcy Code,
or otherwise) to the claims of the Lenders against the Wyoming Borrowers, any
other guarantor of the Guaranteed Obligations and all contractual, statutory or
common law rights of reimbursement, contribution or indemnity from the Wyoming
Borrowers or any other guarantor of the Wyoming Borrowers which it may at any
time otherwise have as a result of this Guarantee.
ARTICLE II
MISCELLANEOUS
-------------
2.1. Notices, Etc. All notices and other communications hereunder
-------------
shall be in writing and shall be delivered or mailed by first class mail,
postage prepaid, addressed (i) if to the Guarantor, at the address of the
Borrowers specified in the Loan Agreement, (ii) if to the Administrative Agent,
the Collateral Agent or any Lender, at the addresses specified in the Loan
Agreement.
2.2. Waiver; Amendment. None of the terms and conditions of this
-----------------
Guarantee may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by the Guarantor and the Collateral Agent (with
the consent of the Required Lenders or, to the extent required by the Loan
Agreement, all of the Lenders); provided, however, that no such change, waiver,
-------- -------
modification or variance shall be made to this Section 2.2 without the consent
-----------
of each Lender adversely affected thereby.
2.3. Successors and Assigns. This Guarantee shall be binding upon the
----------------------
Guarantor and its successors and assigns (provided, however, that the Guarantor
-------- -------
shall not assign any of its rights or Guaranteed Obligations hereunder without
the prior written consent of the Administrative Agent), and shall inure,
together with the rights and remedies of the Collateral Agent hereunder, to the
benefit of the Collateral Agent, the Lenders and their respective successors,
transferees and assigns.
2.4. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
2.5. Headings. The headings of the several sections and subsections in
--------
this Guarantee are for purposes of reference only and shall not limit or define
the meaning hereof. This Guarantee may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. In the event that any provision of this
Guarantee shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Guarantee which shall
remain binding on all parties hereto.
5
2.6. Waiver of Jury Trial. The Guarantor and the Collateral Agent, to
--------------------
the fullest extent permitted by law, each hereby irrevocably waives all right to
a trial by jury in any action, proceeding or counterclaim arising out of or
relating to this agreement or the transactions contemplated hereby.
6
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed
by their duly elected officers duly authorized as of the date first above
written.
CALWEST INDUSTRIAL PROPERTIES, LLC,
a California limited liability company
By: RREEF America L.L.C., its Manager
By: _______________________________
Name:
Title:
