THIRD AMENDED AND RESTATED SECURED REVOLVING CREDIT AGREEMENT
Exhibit 10.1
THIRD AMENDED AND RESTATED
SECURED REVOLVING CREDIT AGREEMENT
SECURED REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED SECURED REVOLVING CREDIT AGREEMENT, dated as of the
19th day
of September, 2006 by and among WINDROSE MEDICAL PROPERTIES, L.P., a Virginia
limited partnership and THE HUNTINGTON NATIONAL BANK, a national banking association and each of
the other Lenders (as hereinafter defined) made a party hereto from time to time, and each of their
respective successors and assigns;
WITNESSETH:
The parties hereto, in consideration of their mutual covenants hereinafter set forth and
intending to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
1.01. Certain Definitions. The following words and terms shall have the following
meanings, respectively, unless the context hereof clearly otherwise requires:
“Acquisition Price” shall mean the total costs (including, but not limited to the
purchase price, due diligence costs, legal fees, accounting fees, loan assumption costs and
expenses, closing costs and other customary costs and expenses of closing) paid by Borrower
or a Special Purpose Entity to acquire a Real Estate Asset.
“Adjusted EBITDA” shall mean EBITDA, plus Loss on Interest Rate Swap plus corporate
general and administrative expenses.
“Adjusted LIBOR Interest Rate” shall mean a rate per annum equal to the quotient
obtained (rounded upwards, if necessary, to the nearest 1/100th of 1%) by dividing (i) the
applicable LIBOR Interest Rate by (ii) 1.00 minus the Reserve Percentage.
“Advance” shall mean an advance to the Borrower on the account of the Revolving
Facility.
“Affiliate” of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person if such Person owns 10% or more of any class of voting securities (or other
ownership interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the controlled
Person, whether through ownership of stock, by contract or otherwise.
“Agent” shall mean The Huntington National Bank and any successor Agent appointed
hereunder.
“Agreement” shall mean this Third Amended and Restated Secured Revolving Credit
Agreement, as the same may be supplemented, modified or amended from time to time.
“Appraised Value” shall mean, with respect to a Mortgaged Property, the fair market
value of such Mortgaged Property, as determined by the appraisal or any update thereof for
such Mortgaged Property, as provided in Section 4.02 (l) hereof.
“Assignee” shall have the meaning assigned thereto in Section 10.02 hereof.
“Assignment and Acceptance” shall mean an Assignment and Acceptance Agreement in the
form attached hereto as Exhibit A.
“Assignment of Rents” shall mean an Assignment of Rents and Leases in the form attached
hereto as Exhibit B, with blanks completed appropriately, given by the Borrower or a
Special Purpose Entity, as applicable, to the Lenders with respect to a Mortgaged Property
as security for the Borrower’s obligations under the Revolving Facility, subject to such
changes as may be required to comply with the requirements of the law of the state
in which such Mortgaged Property is located, as the same may be supplemented, modified or
amended from time to time.
“Borrower” shall mean Windrose Medical Properties, L.P., a Virginia limited
partnership.
“Borrower’s Affidavit” shall mean a Borrower’s Closing Affidavit in the form of
Exhibit C attached hereto, with blanks completed appropriately, given by the
Borrower or a Special Purpose Entity to the Lenders with respect to a Mortgaged Property.
“Borrowing Base” shall mean sixty-five percent (65%) of the aggregate Appraised Value
of the Mortgaged Properties, subject to the provisions of Section 2.01 hereof.
“Borrowing Base Certificate” shall mean a certificate in the form of Exhibit D
attached hereto executed by the Chief Executive Officer or Chief Financial Officer of the
Borrower.
“Business Day” shall mean each day excluding Saturdays, Sundays and any other day on
which Agent is closed for business to the public.
“Capital Expenditure Reserve” shall mean an amount equal to the product of (a) $0.15
multiplied by (b) the gross rentable square footage of the Real Estate Assets as determined
from time to time by the Compliance Certificate and identified as item E thereon.
“Capital Expenditure Reserve Factor” shall mean $0.15 per rentable square foot.
“Closing” shall mean the execution and delivery by the Borrower to the Lenders of this
Agreement, the Notes and the other Loan Documents.
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“Closing Date” shall mean the date of the Closing.
“Collateral Assignment of Mortgaged Property Sale Agreement” shall mean a Collateral
Assignment of Mortgaged Property Sale Agreement in the form attached hereto as Exhibit
E, with blanks completed appropriately, given by the Borrower or a Special Purpose
Entity, as applicable, to the Lenders with respect to a Mortgaged Property as security for
the Borrower’s obligations under the Revolving Facility as the same may be supplemented,
modified or amended from time to time.
“Commitment” shall mean the maximum amount each Lender has agreed to lend to Borrower
as part of the Revolving Facility, as set forth below the signature line of each Lender,
subject to modification by each Assignment and Acceptance.
“Compliance Certificate” shall mean a certificate in the form of Exhibit F
annexed hereto, executed by the chief executive officer or chief financial officer of
Borrower.
“Conditional Default” shall mean any condition, event, act or omission which, with the
giving of notice or passage of time or both, would constitute an Event of Default.
“Consolidated Group” shall mean Guarantor, Borrower and all Subsidiaries of Guarantor
or Borrower which are consolidated with Guarantor and/or Borrower for financial reporting
purposes under GAAP. Consolidated Group shall not include an Investment Affiliate or any
other Affiliate which is not owned 50% or more by the Borrower, Guarantor, or their
respective Subsidiaries.
“Construction Loans” shall mean financing obtained by Borrower, Guarantor or a Special
Purpose Entity to finance the costs set forth in the Real Estate Asset Budget Amount for the
construction of a Real Estate Asset.
“Current Asset Value of Existing Real Estate Asset” shall mean, for any calendar
quarter, the current asset value of Real Estate Assets, other than Real Estate Assets
acquired during such calendar quarter, determined from time to time by the Compliance
Certificate and identified as item H thereon.
“Debt Service Coverage Ratio” shall mean the ratio of EBITDA plus Loss on Interest Rate
Swap during the then trailing twelve (12) month period, to the aggregate sum of all Interest
payments and principal payments (excluding principal payments upon maturity of a loan or
voluntary prepayments of principal) on Indebtedness of the Consolidated Group, and the
Consolidated Group’s pro rata share of any Indebtedness of any Investment Affiliate due and
payable during the then trailing twelve (12) month period. The first test shall be
conducted for the quarter ended September 30, 2005, and tested at each quarter end
thereafter.
“Default Rate” shall mean a rate of interest from time to time which is Two Percent
(2%) per annum above the applicable Interest Rates otherwise then in effect.
“Defaulting Lender” shall have the meaning set forth in Section 11.5(b) hereof.
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“Deposit” shall mean an xxxxxxx money deposit made by a buyer under a Mortgaged
Property Sale Agreement and held by a Title Company or by the Borrower or Special Purpose
Entity, as applicable.
“Disbursement Request” shall mean a statement of the Borrower setting forth the amount
of an Advance being requested and containing such other information as is required by
Paragraph (a) of Section 5.01 hereof.
“EBITDA” shall mean for any period, with respect to the Consolidated Group on a
consolidated basis, determined in accordance with GAAP, the sum of the net income (or net
loss) for the then-ending calendar quarter, including the Consolidated Group’s pro rata
share of net income (or net loss) in any Investment Affiliate, plus the sum of all expenses
determined in accordance with GAAP for the then-ending calendar quarter for (a) Interest,
(b) depreciation, (c) amortization, (d) all accrued or paid taxes on or measured by income
to the extent included in the determination of such net income (or net loss), and (e)
amounts attributable to the minority interest of members of Special Purpose Entities and
other minority members or partners of Borrower, Special Purpose Entities or Guarantor). Net
income (or net loss) shall be computed without giving effect to extraordinary losses or
gains.
“Environmental Indemnity Agreement” shall mean an Environmental Indemnity Agreement in
the form attached hereto as Exhibit G, with blanks completed appropriately, to be
executed and delivered with respect to a Mortgaged Property by a Special Purpose Entity, the
Borrower and the Guarantor to the Lenders, as the same may be supplemented, modified or
amended from time to time.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” shall mean any trade or business, whether or not incorporated, which
together with the Borrower would be treated as a single employer under ERISA.
“Event of Default” shall mean any of the events of default described in Section
8.01 hereof.
“FEMA” shall mean the Federal Emergency Management Agency, or any successor entity.
“Fixtures” shall mean all personal property now or hereafter owned by the Borrower or a
Special Purpose Entity and now or hereafter affixed to, incorporated into or to be
incorporated into, or used or useful in connection with, a Mortgaged Property or any part
thereof, all replacements thereof, additions thereto and substitutions therefor.
“GAAP” shall mean generally accepted accounting principles in the United States of
America in effect from time to time as promulgated by the Financial Accounting Standards
Board and recognized and interpreted by the American Institute of Certified Public
Accountants as of the end of the first full quarter following the promulgation of such
standards.
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“Governmental Authorities” shall mean the United States of America, the state and local
jurisdictions in which a Mortgaged Property is located and any political subdivision
thereof, and any agency, department, commission, board, bureau or instrumentality of any of
them.
“Governmental Requirement” shall mean any law, ordinance, order, rule or regulation of
any Governmental Authority, including but not limited to laws, ordinances, orders, rules or
regulations with regard to zoning, subdivision, building, safety, fire protection or
environmental matters applicable to a Mortgaged Property.
“Guarantor” shall mean Windrose Medical Properties Trust, a Maryland real estate
investment trust.
“Guaranty” shall mean the Third Amended and Restated Unconditional Guaranty executed
and delivered by Guarantor to the Lenders of even date herewith, pursuant to which the
Guarantor guarantees the Borrower’s obligations under the Loan Documents and the LOC
Facility Note, as the same may be supplemented, modified or amended from time to time.
“Hazardous Constituent” shall have the meaning assigned thereto under 40 C.F.R.
§260.10.
“Hazardous Materials” shall mean, collectively, Hazardous Substances, Hazardous
Constituent and Solid Wastes.
“Hazardous Materials Laws” shall mean all laws, statutes, ordinances, rules,
regulations, permits, licenses, judgments, writs, injunctions, decrees, orders,
determinations, directives and standards promulgated by any governmental authority
concerning Hazardous Materials or concerning the protection of, or regulation of the
discharge of substances into, the environment or concerning the health or safety of persons
with respect to environmental hazards, and includes, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 U.S.C. §§9601 et seq., Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976 and Solid and
Hazardous Waste Amendments of 1984, 42 U.S.C. §§6901 et seq., Federal Water Pollution
Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. §§1251 et seq., Clean Air
Act of 1966, as amended, 42 U.S.C. §§7401 et seq., Toxic Substances Control Act of 1976, 15
U.S.C. §§2601 et seq., Occupational Safety and Health Act of 1970, as amended, 29 U.S.C.
§§651 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
§§11001 et seq., National Environmental Policy of 1975, 42 U.S.C. §§4321 et seq., Safe
Drinking Water Act of 1974, as amended, 42 U.S.C. §300(f) et seq., the Hazardous Materials
Xxxxxxxxxxxxxx Xxx, 00, X.X.X. §0000 et seq., the Federal Insecticide, Fungicide, and
Xxxxxxxxxxx Xxx, X. X.X. §0000 et seq., and any similar or implementing law of the state in
which a Mortgaged Property is located, and all amendments, rules, and regulations
promulgated thereunder or implementing the same.
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“Hazardous Substances” shall mean at any time any substance, waste, pollutant,
contaminant or material, in solid, liquid or gaseous form, which: (i) is a substance
regulated or defined or designated as hazardous, extremely or imminently hazardous,
objectionable, dangerous, or toxic pursuant to any law, by any local, state, territorial or
federal governmental authority; (ii) is a substance with respect to which such a
governmental authority otherwise requires environmental compliance, investigation,
monitoring, reporting, or remediation; including but not limited to, (A) all substances,
wastes, pollutants, contaminants and materials regulated, or defined or designated as
hazardous, extremely or imminently hazardous, dangerous, objectionable or toxic, under any
Hazardous Materials Law; (B) petroleum and petroleum based products including crude oil,
used oil and any fractions thereof; (C) natural gas, synthetic gas, and any mixtures
thereof; (D) radon; (E) radioactive substances and materials; (F) asbestos; (G) urea
formaldehyde; (H) polychlorinated biphenyls; (I) lead; (J) methane; (K) flammable
substances and materials; and (L) explosives.
“Improvements” shall mean the improvements located upon a Mortgaged Property.
“Indebtedness” shall mean all obligations, contingent and otherwise, that in accordance
with GAAP should be classified upon a Person’s balance sheet as liabilities, or to which
reference should be made by footnotes thereto, including, without limitation, all of the
following, whether or not so classified: (a) all debt and similar monetary obligations,
whether direct or indirect; (b) all liabilities secured by any mortgage, pledge, negative
pledge, security interest, lien, negative lien, charge, or other encumbrance existing on
property owned or acquired subject thereto, whether or not the liability secured thereby
shall have been assumed; (c) all guarantees, endorsements and other contingent obligations
whether direct or indirect in respect of indebtedness or obligations of others, including
any liability as the general partner of a partnership, any obligation to supply funds to or
in any manner to invest in, directly or indirectly, any Person, to purchase indebtedness, or
to assure the owner of indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make payment of the
indebtedness held by such owner or otherwise, and the obligations to reimburse the issuer in
respect of any letters of credit; (d) obligations as a lessee under any “capitalized lease”
(as determined in accordance with GAAP); (e) all subordinated debt; (f) all obligations in
respect of deferred purchase prices; (g) all obligations to contribute money; (h) all
obligations under interest rate swaps and similar agreements; and (i) such Person’s
liabilities, contingent or otherwise of the type set forth in (a) through (h) above, under
any joint venture, limited liability company or partnership agreement. Indebtedness shall
not include proceeds from the issuance of preferred stock if such proceeds are classified as
equity under GAAP.
“Inspecting Architect” shall mean an independent architectural or engineering firm
employed by the Agent with respect to a Mortgaged Property. The Borrower may submit to the
Agent a list of suggested architectural and engineering firms for consideration by the
Agent. The Agent shall not, however, be obligated to select or retain an Inspecting
Architect from such list.
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“Interest” shall mean, for any period, the sum of all interest due and payable for such
period (including amortization of original issue discount and debt issuance costs on any
Indebtedness and the interest portion of any deferred payment obligation, calculated in
accordance with generally accepted accounting principles), capitalized interest and non-cash
interest expenses, all commissions, discounts and other fees and expenses owed with respect
to letters of credit and bankers’ acceptance financing, the net costs associated with any
type of interest rate protection agreements (including caps, swaps, options, futures or
similar agreements or arrangements with respect to interest rates), and all but the
principal component of rentals in respect of “capitalized leases” (determined in accordance
with GAAP) paid, accrued or due to be paid or to be accrued during such period.
“Interest Rate” shall mean, as to each Advance, a rate per annum equal to (i) for Prime
Advances, the Prime Interest Rate and (ii) for LIBOR Advances, the Adjusted LIBOR Interest
Rate.
“Interest Rate Protection Product” shall mean an interest rate hedging program through
the purchase of an interest rate swap, cap or other such interest rate protection product
with respect to any Indebtedness during the term of the Revolving Facility plus one (1) day.
“Investment Affiliate” shall mean any Person in which the Consolidated Group, directly
or indirectly, has an ownership interest, whose financial results are not consolidated under
GAAP with the financial results of the Consolidated Group.
“Lease” shall mean a lease of all or a portion of a Mortgaged Property (excluding any
incidental real estate which is contiguous to the leased real estate and improvements and
which the Borrower or a Special Purpose Entity is or was required to purchase as part of the
acquisition of the leased real estate and improvements) entered into in the ordinary course
of business by and between the Borrower or a Special Purpose Entity, as applicable, as
landlord, and a Tenant, as tenant.
“Lenders” shall mean The Huntington National Bank, a national banking association, and
any successor thereto or any holder(s) of the Revolving Facility (or any portion thereof)
from time to time who is an Assignee.
“Letters of Credit” shall mean Standby Letters of Credit issued by Agent on behalf of
Lenders at the request of Borrower and Guarantor not exceeding the aggregate sum of Three
Million Dollars ($3,000,000) pursuant to Section 2.9 hereof.
“Leverage Ratio” shall mean the ratio of (a) Total Liabilities to (b) Total Current
Value of Assets as such ratio shall be determined from time to time in accordance with this
Agreement and calculated in the manner set forth in the Compliance Certificate.
“LIBOR” shall mean the average (rounded upward to the nearest 1/16 of 1%) of the per
annum rates at which deposits in immediately available funds in U.S. dollars for the
applicable LIBOR Interest Period and in the amount of the applicable LIBOR Advance are
offered to the Agent by prime banks in the London interbank Eurodollar
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market, determined as of 11:00 a.m. London time (or as soon thereafter as practicable)
two (2) London Banking Days prior to the beginning of the applicable LIBOR Interest Period.
“LIBOR Advance” shall mean any Advance which is determined with reference to the
Adjusted LIBOR Interest Rate.
“LIBOR Interest Period” shall mean a period of one (1) month, two (2) months, three (3)
months, or six (6) months as selected by the Borrower.
“LIBOR Interest Rate” shall mean, (a) with respect to Advances under Note A, a rate per
annum equal to one hundred fifty (150) basis points above LIBOR; and (b) with respect to
Advances under Note B, a rate per annum equal to one hundred seventy-five (175) basis points
above LIBOR.
“Loan Documents” shall mean, this Agreement, the Notes, Mortgages, Assignments of
Rents, Collateral Assignments of Mortgaged Property Sale Agreements, Guaranty, Borrower’s
Affidavits, Environmental Indemnities, the Pledge Agreements and other documents executed
and/or delivered by or on behalf of the Borrower, the Guarantor or a Special Purpose Entity
in connection with the Revolving Facility or any Advance which are in effect from time to
time, as the same may be supplemented, modified or amended from time to time.
“LOC Facility” shall have the meaning set forth in Section 2.9 hereof.
“LOC Facility Note” shall mean that certain Reimbursement Note in the original
principal amount of Three Million Dollars ($3,000,000) executed and delivered by Borrower to
The Huntington National Bank of even date herewith, as the same may be renewed, extended,
supplemented, replaced, modified or amended from time to time.
“London Banking Day” shall mean a day on which commercial banks are open for business
in London, England, and quoting deposit rates for U.S. dollar deposits.
“Loss on Interest Rate Swap” shall mean the loss recognized currently in earnings
pursuant to compliance with Statement of Financial Accountings Standard No. 133, “Accounting
for Derivative Instruments and Hedging Activities.”
“Major Lease” shall mean a Lease between Borrower or a Special Purpose Entity, as
applicable, and a Major Tenant.
“Major Tenant” shall mean any Tenant occupying twenty-five percent (25%) or more of a
Mortgaged Property.
“Material Adverse Effect” shall mean any fact or circumstance which (a) materially and
adversely effects the business, operation, property or financing conditions of the Borrower
and Guarantor taken as a whole, or (b) has a material adverse effect on the ability of the
Borrower, Guarantor or a Special Purpose Entity to perform
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their respective obligations under this Agreement, the Notes or the other Loan
Documents.
“Mezzanine Debt” shall mean Indebtedness of Borrower to The Huntington Real Estate
Investment Company or to other financial institutions acceptable to Agent not to exceed the
sum of Fifty Million Dollars ($50,000,000) in the aggregate, which Indebtedness is secured
by equity interests in entities having Indebtedness secured by mortgages, and which
Indebtedness is subordinate to such mortgage debt.
“Monetary Event of Default” shall mean an Event of Default under Section
8.01(a) hereof or any other Event of Default which can be cured by the payment of money.
“Mortgage” shall mean a Real Estate Mortgage and Security Agreement substantially in
the form of Exhibit H-1 attached hereto, with blanks completed appropriately, or a
Deed of Trust and Security Agreement substantially in the form of Exhibit H-2
attached hereto, with blanks completed appropriately, given by the Borrower or a Special
Purpose Entity, as applicable, to the Lenders with respect to a Mortgaged Property as
security for the Borrower’s obligations under the Revolving Facility, subject to such
changes as may be required to comply with the requirements of the laws of the state in which
the Mortgaged Property is located, as the same may be supplemented, modified or amended from
time to time.
“Mortgage Release Price” shall mean with respect to a Mortgaged Property, an amount
equal to the principal reduction required to allow Borrower to remain in compliance with the
Borrowing Base and the Debt Service Coverage Ratio as set forth in this Agreement determined
in accordance with Section 2.06(b) hereof.
“Mortgaged Properties Debt Service” shall mean the sum of all Interest payments and
principal payments on the outstanding principal balance of the Revolving Facility due and
payable during the then-ending calendar quarter, annualized (multiplied by 4), assuming the
level amortization of the then outstanding principal balance of the Revolving Facility over
a period of twenty-five (25) years, at a per annum interest rate equal to One and One-Half
Percent (11/2%) above the most recent weekly average yield on United States Treasury
Securities adjusted to a constant maturity of ten (10) years as measured on the first day of
each calendar quarter.
“Mortgaged Properties Debt Service Coverage Ratio” shall mean the Mortgaged Properties
Net Operating Income divided by the Mortgaged Properties Debt Service.
“Mortgaged Properties Net Operating Income” shall mean the total rental income during
the then-ending calendar quarter, annualized (multiplied by 4) (including minimum rent,
additional rent, common area maintenance, real estate tax and insurance reimbursements and
other tenant reimbursements, including tenant expense reimbursements and tenant improvement
reimbursements, recurring parking income), received by Borrower and each Special Purpose
Entity, as applicable, and arising from the ownership and operation of the Mortgaged
Properties (excluding tenant security
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deposits, rents from tenants that are subject to a voluntary or involuntary petition
for relief under any federal or state bankruptcy codes or insolvency laws, and rents from
tenants that are not in possession of its demised premises, except rents and other payments
from tenants under master leases or occupancy agreements approved by Agent), less the sum of
all actual costs, taxes, expenses and disbursements paid or due and payable during such
then-ending calendar quarter, annualized (multiplied by 4), in connection with the
ownership, leasing, management, operation, maintenance and repair of the Mortgaged
Properties and of the personal property, fixtures, machinery, equipment, systems and
apparatus located therein or used in connection therewith, but excluding (i) non-cash
expenses, such as depreciation and amortized costs, (ii) state and federal income taxes,
(iii) the non-current portion of capital expenditures, (iv) any expenses paid directly by
tenants to third parties, (v) any adjustments made for straight lining of rents, (vi)
extraordinary income or expense, and (vii) debt service payments on all Indebtedness of
Borrower with respect to the Mortgaged Properties; all determined in accordance with GAAP,
as measured on the last day of each calendar quarter.
“Mortgaged Property” shall mean all Real Estate Assets securing the Revolving Facility
by virtue of a Mortgage.
“Mortgaged Property Sale Agreement” shall mean with respect to a Mortgaged Property, an
agreement between the Borrower or a Special Purpose Entity, as applicable, and a buyer not
affiliated with the Borrower or the Guarantor which is approved by the Agent in a form
reasonably acceptable to the Agent, pursuant to which agreement the Borrower or a Special
Purpose Entity, as applicable, agrees to sell, and such buyer agrees to purchase, a
Mortgaged Property. Such sale agreement shall require the buyer thereunder to deposit a
Deposit with the Borrower or a Special Purpose Entity, as applicable, or a Title Company or
other escrow agent. Such term shall also include the exercise of a right of first refusal
or purchase option in a lease of a Mortgaged Property held by a Major Tenant.
“Mortgaged Property Site” shall mean the real estate portion of a Mortgaged Property.
“Non-Monetary Event of Default” shall mean any Event of Default, other than a Monetary
Event of Default.
“Note A” shall mean that certain Third Replacement Credit Note in the original
principal amount of Thirty-Eight Million Five Hundred Thousand Dollars ($38,500,000)
executed and delivered by Borrower to The Huntington National Bank of even date herewith, as
the same may be renewed, extended, supplemented, replaced, modified, or amended from time to
time.
“Note B” shall mean that certain Third Replacement Credit Note in the original
principal amount of Eleven Million Five Hundred Thousand Dollars ($11,500,000) executed and
delivered by Borrower to The Huntington National Bank of even date herewith, as the same may
be renewed, extended, supplemented, replaced, modified, or amended from time to time.
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“Notes” shall mean, together, Note A and Note B.
“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to
ERISA, or any successor entity.
“Percentage” shall mean, with respect to each Lender, the percentage which its
Commitment constitutes of the maximum aggregate amount of the Revolving Facility as set
forth below the signature line of each Lender as the same may be adjusted from time to time.
“Person” shall mean an individual, a partnership, a joint venture, a corporation, a
limited liability company, a trust, an unincorporated organization or a Governmental
Authority.
“Personal Property” shall mean all tangible personal property owned by the Borrower or
a Special Purpose Entity and now or at any time hereafter located on or at a Mortgaged
Property or used in connection therewith or with the improvements forming a part of such
Mortgaged Property.
“Plan” shall mean an Employee Benefit Plan which is covered by Title 4 of ERISA or
subject to the minimum lending standards under Section 412 of the Internal Revenue Service
as to which the Borrower may have any liability.
“Plans and Specifications” shall mean the plans and specifications for the construction
of the Improvements forming part of an applicable Mortgaged Property prepared by the
architect therefor approved by Borrower.
“Pledge Agreements” shall mean certain Membership Pledge Agreements now or hereafter
executed by Borrower in favor of Lenders pursuant to which Borrower pledges its membership
interest in Special Purpose Entities.
“Prime Advance” shall mean any Advance which is determined with reference to the Prime
Rate.
“Prime Interest Rate” shall mean a rate per annum equal to the Prime Rate.
“Prime Rate” shall mean the interest rate per annum announced from time to time by the
Agent as its prime rate. Each interest rate determined by reference to the Prime Rate shall
change automatically from time to time, effective as of the effective date of each change in
the Prime Rate. The Agent’s Prime Rate is not necessarily the lowest rate at which the
Agent lends its funds. The Prime Rate is only an index rate from which interest rates
actually charged to the Agent’s customers may be measured. The use of the Prime Rate does
not constitute a commitment by the Agent to lend money at a preferred rate.
“Prohibited Transaction” shall have the meaning ascribed thereto by ERISA.
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“Project Agreement” shall mean a Project Agreement in the form of Exhibit I
attached hereto, with blanks completed appropriately, to be entered into by the Agent
and the Borrower and a Special Purpose Entity, pursuant to which the Required Lenders
approve a Mortgaged Property.
“Real Estate Asset” shall mean the real estate and all improvements thereon for use as
a medical related facility owned by the Consolidated Group, together with any incidental
real estate which is contiguous to the leased real estate and improvements and which
Consolidated Group is or was required to purchase as part of the acquisition of the leased
real estate and improvements.
“Real Estate Asset Budget Amount” shall mean the total budgeted cost (as such budget
shall be updated from time to time) of all projects under construction owned by the
Consolidated Group plus the Consolidated Group’s pro rata share of the total budgeted cost
(as such budget shall be updated from time to time) of all projects under construction owned
by any Investment Affiliate or by any Subsidiary of the Consolidated Group that is not a
wholly owned Subsidiary provided, however, that with respect to (i) projects owned by any
such Investment Affiliate or Subsidiary for which the respective financial responsibilities
of the other owners of such Investment Affiliate or Subsidiary on the one hand and the
Consolidated Group and its wholly owed Subsidiaries on the other hand are not in proportion
to the respective ownership interests in the applicable Investment Affiliate or Subsidiary,
then the portion of budgeted cost of such project included in the Real Estate Asset Budget
Amount shall be adjusted to reflect the Consolidated Group’s actual financial responsibility
related to such project. Such costs shall include, without limitation, all land acquisition
costs (but may exclude costs of land used for expansion projects which was not purchased for
the purpose of such expansion project), design and permitting costs, construction period
real estate taxes, leasing costs including brokers’ commissions and tenant improvements,
allowances or reimbursements, construction costs and opening costs. With respect to any
projects financed with Indebtedness other than the Revolving Facility, such costs shall also
include construction period interest and all fees and expenses associated with such
Indebtedness.
“Recourse Indebtedness” shall mean any Indebtedness of the Borrower, Guarantor or
Special Purpose Entity, including the Borrower’s, Guarantor’s or Special Purpose Entity’s
respective recourse pro rata share of any Indebtedness in any Investment Affiliate, for
which the lender thereof does not agree to look solely to a Real Estate Asset for the
payment of the indebtedness subject to usual and customary exculpation carve out provisions
and environmental indemnification agreements.
“Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve
System, as amended from time to time.
“Reportable Event” shall have the meaning ascribed thereto by ERISA.
“Restricted Assets” shall have the meaning set forth in Section 7.07 hereof.
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“Required Lenders” shall mean Lenders holding Percentages aggregating at least
Sixty-Six and Two-Thirds Percent (66-2/3%) or greater.
“Reserve Percentage” shall mean for any day that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve requirement
(including, without limitation, all basic, supplemental, marginal and other reserves and
taking into account any transitional adjustments or other scheduled changes in reserve
requirements) for a member of the Federal Reserve System in Cleveland, Ohio, in respect of
“Eurocurrency Liabilities.” The Adjusted LIBOR Interest Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve Percentage.
“Revolving Facility” shall mean the revolving loan under the Loan Documents from the
Lenders to the Borrower in a principal amount not to exceed Fifty Million Dollars
($50,000,000) at any time outstanding, subject to increase in accordance with the terms of
Section 2.10 hereof.
“Revolving Facility Extended Maturity Date” shall mean September 30, 2008.
“Revolving Facility Maturity Date” shall mean (a) the Revolving Facility Original
Maturity Date, or (b) the Revolving Facility Extended Maturity Date if the term of Revolving
Facility is extended in accordance with Section 2.04 hereof.
“Revolving Facility Original Maturity Date” shall mean September 30, 2007.
“Single Mortgaged Property Debt Service” shall mean the total sum of all Interest
payments and principal payments which would be due and payable during the then-ending
calendar quarter, annualized (multiplied by 4), with respect to a single Mortgaged Property
assuming the level amortization of a principal loan balance equal to Sixty-Five Percent
(65%) of the Appraised Value of such Mortgaged Property over a period of twenty-five (25)
years, at a per annum interest rate equal to One and One-Half Percent (11/2%) above the most
recent weekly average yield on United States Treasury Securities adjusted to a constant
maturity of ten (10) years as measured on the last day of each calendar quarter.
“Single Mortgaged Property Debt Service Coverage Ratio” shall mean the Single Mortgaged
Property Net Operating Income divided by the Single Mortgaged Property Debt Service.
“Single Mortgaged Property Net Operating Income” shall mean the total rental income,
with respect to a Mortgaged Property during the then-ending calendar quarter, annualized
(multiplied by 4) (including minimum rent, additional rent, common area maintenance, real
estate tax and insurance reimbursements and other tenant reimbursements, including tenant
expense reimbursements and tenant improvement reimbursements, recurring parking income),
received by Borrower and each Special Purpose Entity, as applicable, arising from the
ownership and operation of such Mortgaged Property (excluding tenant security deposits,
rents from tenants that are
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subject to a voluntary or involuntary petition for relief under any federal or state
bankruptcy codes or insolvency laws and rents from tenants that are not in possession in its
demised premises at such Mortgaged Property, except rents and other payments from tenants
under master leases or occupancy agreements approved by Agent), less the sum of actual
costs, taxes, expenses and disbursements paid or due and payable during such then-ending
calendar quarter, annualized (multiplied by 4), in connection with the ownership, leasing,
management, operation, maintenance and repair of such Mortgaged Property and of the personal
property, fixtures, machinery, equipment, systems and apparatus located therein or used in
connection therewith, but excluding (i) non-cash expenses, such as depreciation and
amortized costs, (ii) state and federal income taxes, (iii) the non-current portion of
capital expenditures, (iv) any expenses to be paid directly by tenants to third parties, (v)
any adjustments made for straight lining of rents, (vi) extraordinary income or expense, and
(vii) the Single Mortgaged Property Debt Service for such Mortgaged Property, all determined
in accordance with GAAP, as measured on the last day of each calendar quarter.
“Solid Wastes” shall have the meaning assigned thereto in 40 C.F.R. §261.2.
“Special Purpose Entities” shall mean limited liability companies or limited
partnerships which own a Mortgaged Property and in which Borrower holds a controlling
interest.
“Stabilized Occupancy” shall mean, with respect to a Real Estate Asset under
construction, the time when such Real Estate Asset has received a certificate of occupancy
(or similar permit or approval).
“Storage Containers” shall mean existing and future containers for Hazardous Materials
and above ground and underground storage tank systems (including underground piping,
conduits or sumps).
“Subordination, Non-Disturbance and Attornment Agreement” shall mean a Subordination,
Non-Disturbance and Attornment Agreement in the form of Exhibit J attached hereto,
with blanks completed appropriately, entered into by the Agent, the Borrower or a Special
Purpose Entity, as applicable, and a Major Tenant with respect to a Mortgaged Property,
subject to such changes as may be required to comply with the requirements of the law of the
state in which the Mortgaged Property is located and such other revisions as may be
reasonably acceptable to Agent, as the same may be supplemented, modified or amended from
time to time.
“Subsidiary” shall mean, with respect to any Person, (i) any corporation more than 50%
of the outstanding securities having ordinary voting power of which shall at the time be
owned or controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership,
limited liability company, association, joint venture or similar business organization more
than 50% of the ownership interests having ordinary voting power of which shall at the time
be so owned or controlled. Unless otherwise expressly provided, all references herein to a
“Subsidiary” shall mean a Subsidiary of the Borrower and/or
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Guarantor. Subsidiaries of a Person shall not include an Investment Affiliate or any
other Affiliate which is not owned 50% or more directly by a Person.
“Tangible Net Worth” shall mean the sum of capital surplus, earned surplus, capital
stock, accumulated depreciation and amortization minus deferred charges, intangibles
(excluding lease intangibles and deferred loan fees) and treasury stock, all as determined
in accordance with GAAP consistently applied.
“Tenant” shall mean any tenant of a Mortgaged Property.
“Title Company” shall mean with respect to a Mortgaged Property, any title insurer
designated by the Borrower and approved by the Agent which agrees to insure the priority of
the lien of the Mortgage on such Mortgaged Property.
“Title Policy” shall mean with respect to a Mortgaged Property, the policy of title
insurance issued by a Title Company to the Lenders insuring the priority of the lien of the
Mortgage on such Mortgaged Property.
“Total Current Value of Assets” shall be the amount determined from time to time by the
Compliance Certificate and identified as item N thereon.
“Total Current Value of Real Estate Assets” shall be the amount determined from time to
time by the Compliance Certificate and identified as item K thereon.
“Total Liabilities” shall mean all liabilities of the Consolidated Group, including the
pro rata share of any liabilities of the Consolidated Group in any Investment Affiliate, all
as determined in accordance with GAAP.
“Unrestricted Cash and Cash Equivalents” shall mean unencumbered cash on hand plus cash
reserved for the payment of taxes, tenant improvements, capital expenditures, lease
commissions or other reserves available to offset expenditures generally recognized as
property operating expenses, or other general and administrative expenses.
“Variable Rate Indebtedness” shall mean Indebtedness which does not bear interest at a
fixed rate of interest and is not covered by an Interest Rate Protection Product.
“Wetlands” shall mean any wetlands area or other area which is subject to the
regulatory jurisdiction of the United States Environmental Protection Agency and/or Army
Corps of Engineers and/or any other Governmental Authority, under any Governmental
Requirement, including, without limitation, the Clean Xxxxx Xxx, 00 X.X.X. §0000, et.
seq.
Unless the context clearly otherwise requires, the foregoing definitions shall be equally
applicable to both the singular and plural forms.
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ARTICLE II
THE REVOLVING FACILITY AND THE LOC FACILITY
THE REVOLVING FACILITY AND THE LOC FACILITY
2.01. Revolving Facility. Subject to the terms and conditions hereof, and relying upon the
representations and warranties herein set forth, the Lenders agree to make the Revolving Facility
to the Borrower. The principal amount of the Revolving Facility outstanding at any time shall not
exceed the lesser of: (a) Fifty Million Dollars ($50,000,000), or (b) the Borrowing Base (as the
same may be adjusted as set forth below in this Section 2.01). The proceeds of Revolving
Facility will be used solely for the acquisition and development by the Borrower, as applicable, of
Real Estate Assets and for working capital purposes as described herein. The proceeds of Revolving
Facility will be advanced to the Borrower in accordance with and subject to the requirements and
limitations set forth herein. Advances will be made to Borrower for working capital purposes
provided such Advances shall not exceed Five Million Dollars ($5,000,000) at any one time. If
prior to the Revolving Facility Maturity Date, the Borrower repays any Advance(s) of the Revolving
Facility, or any portion thereof, loan proceeds in an amount equal to the amount of the repayment
will again be made available to the Borrower for Advances, subject to the terms and conditions
hereof.
In the event a Single Mortgaged Property Debt Service Coverage Ratio is less than 1.25 to
1.00, the Borrowing Base shall be reduced to an amount sufficient to support a 1.40 to 1.0 Single
Mortgaged Property Debt Service Coverage Ratio with respect to the subject Mortgaged Property until
such time as such Mortgaged Property achieves a 1.40 to 1.0 Single Mortgaged Property Debt Service
Coverage Ratio. By way of illustration, assume a Single Mortgaged Property has (i) an Appraised
Value of $1,000,000; (ii) an initial Borrowing Base Value of $650,000 (65% of Appraised Value);
(iii) an initial Single Mortgaged Property Debt Service of $50,256 (assuming an interest rate of
six percent (6%) for this example); and (iv) single Mortgaged Property Net Operating Income of
$62,820 (or, 1.25 to 1.0 of the Single Mortgaged Property Debt Service Ratio). If the Single
Mortgaged Property Net Operating Income decreases to $55,000 (a Single Mortgaged Property Debt
Service Ratio below 1.25 to 1.0 using a Borrowing Base Value of $650,000 and a debt constant of
$50,256), then the required Single Mortgaged Property Debt Service Ratio is adjusted to 1.4 to 1.0
Assuming net operating income to $55,000, then the Borrowing Base value for this property is
reduced to $508,117. At 1.40 to 1.0, net operating income of $55,000 supports a Single Mortgaged
Property Debt Service of $39,285, which is a Borrowing Base Value of $508,117 (at the assumed
interest rate). The Single Mortgaged Property Debt Service Ratio will remain at 1.40 to 1.0 until
the Borrowing Base Value for such property equals $650,000. Thereafter, the Borrowing Base Value
(subject to the 65%) limit) shall be calculated based on the actual Single Mortgaged Property Debt
Service unless and until the Single Mortgaged Property Debt Service falls below 1.25 to 1.0 at
which time the Single Mortgaged Property Debt Service Ratio shall return to 1.4 to 1.0.
In the event of an occurrence of an event which has a Material Adverse Effect upon a Special
Purpose Entity and the same is not cured within sixty (60) days after notice by Agent to Borrower,
the Borrowing Base will be reduced by sixty percent (60%) of the Appraised Value of the applicable
Mortgaged Property.
2.02. Notes. The Revolving Facility and all Advances thereunder shall be evidenced by the
Borrower’s receipts and the Notes. The aggregate principal amount of all Advances under
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Note A shall be limited to the lesser of (a) Thirty-Eight Million Five Hundred Thousand Dollars
($38,500,000) or (b) an amount equal to fifty percent (50%) of the aggregate Appraised Value of the
Mortgaged Properties (the “Note A Maximum Limit”). All Advances under the Revolving
Facility made in excess of the Note A Maximum Limit up to, but not exceeding the Borrowing Base,
shall be evidenced by Note B; provided, however, the aggregate amount of all Advances under Note B
shall be limited to Eleven Million Five Hundred Thousand Dollars ($11,500,000). Borrower agrees
that if after the Closing Date an Assignee becomes a Lender in accordance with the terms of this
Agreement, Borrower shall execute Notes payable to the order of such Lender in the principal amount
of its Commitment (i.e., its share of the Revolving Facility). Borrower further agrees that if a
Lender’s Commitment hereafter increases or decreases pursuant to an assignment complying with the
terms of Article X hereof, Borrower agrees to execute replacement Notes (substantially in
the form of the Notes executed by Borrower payable to The Huntington National Bank of even date
herewith) payable to the order of such Lender in the principal amount of such revised Commitment.
2.03. Rate of Interest. During the term of the Revolving Facility, the unpaid principal
amount thereof shall, subject to the terms and conditions hereinafter set forth, bear interest on a
basis selected by the Borrower from the following interest rate selections: (a) the Adjusted LIBOR
Interest Rate; and (b) the Prime Interest Rate.
Each Advance under the Revolving Facility shall be made as either a Prime Advance or a LIBOR
Advance, as selected by the Borrower. The Borrower may have Prime Advances and LIBOR Advances
outstanding simultaneously; provided, however, the Borrower may not have more than five (5) LIBOR
Advances under the Revolving Facility in existence at any time and each LIBOR Advance must be in an
amount which is greater than or equal to $1,000,000. The Borrower may convert any Prime Advances
aggregating at least $1,000,000 in principal amount into a LIBOR Advance on the first day of a
calendar month. At the end of the LIBOR Interest Period applicable to a LIBOR Advance, the
Borrower may renew the LIBOR Advance or may convert the LIBOR Advance to a Prime Advance. If the
Borrower fails to renew any LIBOR Advance or if the Borrower shall receive any new Advance without
designating whether such Advance is a LIBOR Advance or a Prime Advance, such Advance shall
automatically be deemed to be a Prime Advance. At any time that the Borrower desires a LIBOR
Advance or intends to renew a LIBOR Advance or convert a Prime Advance into a LIBOR Advance, the
Borrower must notify the Agent by a Notice of Pricing Election in the form attached hereto as
Exhibit L at least three (3) London Banking Days prior to the day on which the Borrower
desires such Advance, renewal or conversion to be effective. The Borrower shall have no right to
designate a new Advance as, or convert an existing Prime Rate Advance to, a LIBOR Advance if an
Event of Default is then continuing. The Borrower shall have no right to select a LIBOR Interest
Period for a LIBOR Advance if such LIBOR Interest Period would extend beyond the Maturity Date.
While and so long as no Event of Default is continuing, interest shall accrue at the
applicable Interest Rates upon the daily principal balance of the Revolving Facility, based on a
three hundred sixty (360) day year, for the actual number of days elapsed since the date to which
interest has been paid.
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If a Lender shall determine, after the date hereof, that the adoption of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or compliance by such
Lender (or such Lender’s lending office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on such Lender’s capital (or on the
capital of a Lender’s holding company) as a consequence of the Revolving Facility to a level below
that such Lender (or such Lender’s holding company) could have achieved but for such adoption,
change or compliance (taking into consideration such Lender’s policies or the policies of such
Lender’s holding company with respect to capital adequacy) by an amount deemed by such Lender to be
material, then from time to time, within fifteen (15) days after demand by such Lender, the
Borrower shall either (a) pay to such Lender such additional amount or amounts as will compensate
such Lenders (or such Lender’s holding company) for such reduction, or (b) convert all LIBOR
Advances to a Prime Advance. If the Borrower elects the option provided in the foregoing
subparagraph (b), the Borrower shall not be subject to the requirement hereunder that the Borrower
reimburse such Lender for any loss, cost or expense incurred by such Lender as a result of the
Borrower paying a LIBOR Advance prior to the end of the applicable LIBOR Interest Period, provided,
however, thereafter the Borrower may not elect for any Advances to be LIBOR Advances. A Lender
will designate a different lending office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. In determining such amount, a Lender may use any reasonable
averaging and attribution methods. Failure on the part of a Lender to demand compensation for any
reduction in return on capital with respect to any period shall not constitute a waiver of such
Lender’s rights to demand compensation for any reduction in return on capital in such period or in
any other period. The protection of this Section shall be available to the Lenders regardless of
any possible contention of the invalidity of the law, regulation or other condition which shall
have been imposed.
2.04. Maturity Dates. If not sooner paid, all Advances under the Revolving Facility shall
be due and payable on the Revolving Facility Original Maturity Date. Borrower shall have the
option to extend the term of Revolving Facility from the Revolving Facility Original Maturity Date
to the Revolving Facility Extended Maturity Date upon satisfaction of the following conditions:
(a) Borrower shall give the Agent written notice of Borrower’s election to extend the term of
Revolving Facility no earlier than thirty (30) days prior to the Revolving Facility Original
Maturity Date; (b) no Event of Default or Conditional Default is then continuing; and (c) Borrower
shall pay to Agent on the Revolving Facility Original Maturity Date an extension fee in an amount
equal to twenty-five (25) basis points of the maximum principal amount of Revolving Facility.
2.05. Interest Payments. The Borrower shall pay interest to the Agent at the applicable
Interest Rates on the outstanding principal balance of the Revolving Facility on the first (1st)
day of each calendar month while proceeds of the Revolving Facility remain outstanding, commencing
on the first (1st) day of the first (1st) calendar month following the first Advance of the
Revolving Facility.
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2.06. Principal Payments. Except as set forth herein, all payments of principal shall be
first applied to the reduction of principal outstanding under Note B and second applied to the
reduction of principal outstanding under Note A or as otherwise directed by Borrower. Upon the
sale of a Mortgaged Property, the Borrower shall pay to the Agent an amount equal to the Mortgage
Release Price payable in respect thereof, and such Mortgage Release Price payment when received by
the Agent, shall be applied in reduction of the principal balance of the Revolving Facility in such
order as Agent may determine in its sole discretion. Notwithstanding the foregoing provisions,
during the continuance of an Event of Default, any Mortgage Release Price payment received by the
Agent may be applied, in the discretion of the Lenders, in reduction of any accrued and unpaid
interest on the Revolving Facility or any outstanding Advance made pursuant to Section
5.01(c) hereof, so long as the Agent provides to Borrower all documents necessary to release
the Mortgaged Property being sold.
At the request of the Agent, the Borrower will furnish to the Agent copies of any closing
statement, purchase agreement and similar documents relating to the sale of a Mortgaged Property
prior to the release by the Agent of the security with respect to such Mortgaged Property.
During the term of the Revolving Facility, upon the Agent’s receipt of the Mortgage Release
Price with respect to a Mortgaged Property, the Agent will release the applicable Mortgaged
Property and all other security of the Lenders encumbering such Mortgaged Property by the prompt
delivery of appropriate documents duly authorized and executed and in accordance with the law of
the State in which the Mortgaged Property is located to fully and completely release any security
interest of Lenders encumbering such Mortgaged Property.
Notwithstanding anything contained herein to the contrary, as a condition to any release
Borrower shall have satisfied the following conditions prior to the Agent’s release of a Mortgaged
Property:
a. No Conditional Default or Event of Default shall exist;
b. Borrower shall have provided to Agent a proforma Borrowing Base Certificate as of
the end of the previous calendar month and a proforma Compliance Certificate as of the end
of the previous calendar quarter, demonstrating Borrower’s compliance with the terms of this
Agreement after giving effect to the release of such Mortgaged Property; and
c. Borrower shall pay all costs and expenses reasonably incurred by Agent in connection
with the release of such Mortgaged Property.
2.07. Prepayments. The Borrower may prepay the principal amount of any Prime Advance in
whole or in part from time to time without any prepayment penalty. The Borrower may not prepay any
LIBOR Advance before the expiration of the LIBOR Interest Period applicable to such LIBOR Advance,
except upon the payment of the amount provided for below.
If any LIBOR Advance becomes due and payable or is prepaid prior to the last day of the
applicable LIBOR Interest Period (including any prepayment resulting from the acceleration of the
Revolving Facility by the Lenders as a consequence of an Event of Default), the Borrower
19
also promises to reimburse the Lenders on demand for any resulting loss, cost, or expense incurred by
the Lenders as a result thereof including, without limitation, any loss incurred in obtaining,
liquidating, or employing deposits from third parties, but excluding the Lenders’ loss of margin
for the period after any such payment. If, because of the introduction of or any change in, or
because of any judicial, administrative, or other governmental interpretation of, any law or
regulation, there shall be any increase in the cost to the Lenders of making, funding, maintaining,
or allocating capital to LIBOR Advances, then from time to time, within fifteen (15) days after
demand by the Agent, the Borrower shall either (a) pay to the Lenders additional amounts sufficient
to compensate the Lenders for such increased cost; or (b) convert all LIBOR Advances to a Prime
Advance. If the Borrower elects the option provided in the foregoing subparagraph (b), the
Borrower shall not be subject to the requirement hereunder that the Borrower reimburse the Lenders
for any loss, cost or expense incurred by the Lenders as a result of the Borrower paying a LIBOR
Advance prior to the end of the applicable LIBOR Interest Period; provided, however, thereafter the
Borrower may not elect for any Advances to be LIBOR Advances. If, because of the introduction of
or any change in, or because of any judicial, administrative, or other governmental interpretation
of, any law or regulation, it becomes unlawful for the Lenders to make, fund, or maintain any LIBOR
Advance, then the Lenders’ obligation to make, fund, or maintain any LIBOR Advance shall terminate.
2.08. Late Fee. If any sum of principal or interest in respect of the Revolving Facility
is not paid within five (5) days after the date when due, then, in addition to and not in lieu of
any other rights or remedies available to the Lenders, the Borrower shall pay to the Lenders, on
demand, a late fee in an amount equal to the greater of five percent (5%) of such sum or
Twenty-Five Dollars ($25.00), but not to exceed Two Thousand Dollars ($2,000.00). In no event,
however, shall a late fee be payable under this Section 2.08 in respect of an Advance and
the interest thereon if the Borrower fails to pay such Advance and interest on the Advance Maturity
Date therefor or on the date on which such Advance and interest are payable as a result of the
acceleration of the Revolving Facility pursuant to the terms of this Agreement.
2.09. LOC Facility/Letters of Credit. Subject to the terms, provisions and conditions
hereof, The Huntington National Bank agrees to make available to Borrower an unsecured line of
credit in an amount not to exceed Three Million Dollars ($3,000,000) for the issuance of Letters of
Credit (“LOC Facility”). Each Letter of Credit shall be irrevocable and shall have an
expiration date not later than the Revolving Facility
Maturity Date. Any draw upon the Letters of Credit issued hereunder shall be (a) evidenced by the
LOC Facility Note, (b) due and payable on demand, and (c) shall bear interest at the Prime Rate.
Borrower shall pay to The Huntington National Bank a fee for issuance of a Letter of Credit in
an amount equal to 125 basis points per annum (computed on the basis of a year of 360-days and the
actual number of days of the stated term of the applicable Letter of Credit) of the aggregate
stated amount of the applicable Letter of Credit. Such fee shall be payable in advance on the date
of issuance of the applicable Letter of Credit. Borrower shall also pay to The Huntington National
Bank when due all usual and customary administrative fees associated with the issuance of the
Letters of Credit.
2.10. Increase in Revolving Facility. If no Conditional Default or Event of Default shall
have occurred and be continuing at such time, the Borrower may request, if it so elects, an
20
increase in the aggregate principal amount of Revolving Facility by making a written request to
Agent that the aggregate principal amount of Revolving Facility be increased; provided that (i) the
aggregate principal amount shall at no time exceed Seventy Million Dollars ($70,000,000), (ii) the
Agent shall have approved such increase in writing, and (iii) any Lender increasing its Commitment,
as appropriate, shall have received any required customary closing conditions, including, without
limitation, the Borrower’s authorizing resolutions and opinions of counsel. Any request received
by the Agent from the Borrower to increase the aggregate principal amount of Revolving Facility
shall be delivered to each Lender and shall be implemented by one or more existing Lenders agreeing
to increase their Commitments; provided that no Lender shall have any obligation to increase its
Commitment but each Lender shall have the right to elect to increase its Commitment in its sole
discretion pro rata with any Lender hereunder or by any combination of the foregoing, as determined
by the Agent in consultation with the Borrower. An increase in the aggregate principal amount of
Revolving Facility and any amendments to this Agreement made solely to evidence such increase shall
not require the consent of any Lender not participating in such increase.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that as of the Closing Date:
3.01. Organization and Qualification. The Borrower is a duly formed and validly existing
limited partnership under the laws of the Commonwealth of Virginia. The Guarantor is a duly formed
and validly existing real estate investment trust under the laws of the State of Maryland.
3.02. Right and Power; Corporate Authority. The Borrower has full right, power and
authority to execute and deliver this Agreement and the other Loan Documents and to perform its
obligations thereunder. The Borrower has taken the necessary corporate action to authorize the
execution and delivery of the Agreement and the other Loan Documents and the borrowings thereunder.
3.03. Conflict With Other Instruments. The execution and delivery of this Agreement and
the other Loan Documents, the consummation of the transactions contemplated thereby, and the
compliance with the terms, conditions and provisions thereof will not conflict with or result in a
breach of any of the terms, conditions or provisions of the partnership agreement of the Borrower,
or, to the Borrower’s actual knowledge, any law or any regulation, order, writ, injunction or
decree of any court or Governmental Authority or any agreement or instrument to which the Borrower
is a party or by which the Borrower or its properties or assets are subject to or bound, or
constitute a default thereunder or result in the creation or imposition of any lien, charge,
security interest or encumbrance of any nature whatsoever upon any of the property of the Borrower
pursuant to the terms of any such agreement or instrument, except as created by the Loan Documents.
3.04. Authority, Validity and Binding Effect. The execution and delivery of this Agreement
and the other Loan Documents, and the making of the borrowings contemplated by the provisions
hereof and thereof, have been duly authorized by all necessary action on the part
21
of the Borrower, and no authorization, approval or consent by, or filing with, any Governmental Authority or public
regulatory authority is necessary therefor except for disclosures as required with the Securities
and Exchange Commission. This Agreement and the other Loan Documents have been duly and validly
executed and delivered by the Borrower and constitute a legal, valid and binding obligation of the
Borrower, enforceable in accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency or other laws of general application affecting the enforcement of
creditors’ rights generally and by principles of equity.
3.05. Financial Condition. The financial statements of the Borrower and the Guarantor
furnished to the Lenders are complete and correct in all material respects. Such financial
statements were prepared in accordance with GAAP consistently applied. The financial statements of
the Borrower and the Guarantor fairly present their respective financial condition at the
respective dates indicated therein. Since the dates of such financial statements, there has been
no material adverse change in the assets, liabilities or financial condition of the
Borrower and the Guarantor from that reflected thereon.
3.06. Litigation. There are no actions, suits or proceedings pending or, to the Borrower’s
actual knowledge, threatened, against or affecting the Borrower, a Special Purpose Entity or the
Guarantor before any court or Governmental Authority which might have a Material Adverse Effect.
3.07. ERISA. The Borrower and each ERISA Affiliate is in compliance in all material
respects with all applicable provisions of ERISA, and neither the Borrower nor any ERISA Affiliate
has incurred any liability to the PBGC. Neither a Reportable Event nor a Prohibited Transaction,
has occurred under, nor has there occurred any complete or partial withdrawal from, nor has there
occurred any other event which would constitute grounds for termination of or the appointment of a
trustee to administer any “employee benefit plan” (including any “multi-employer plan”) maintained
for employees of Borrower or any ERISA Affiliate, all within the meanings ascribed by
ERISA.
3.08. Regulation U. The Borrower is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of Regulation U) and the
Borrower does not hold any margin stock (as defined in Regulation U).
3.09. Investment Company Act. Neither the Borrower nor the Guarantor is an “investment
company” or a company “controlled” by an “investment company,” within the meaning of the Investment
Company Act of 1940, as amended.
3.10. Public Utility Holding Company. Neither the Borrower nor the Guarantor is a “holding
company” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company”
or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
3.11. Insolvency. Neither the Borrower, a Special Purpose Entity nor the Guarantor is
“insolvent” within the meaning of that term as defined in the Federal Bankruptcy Code and the
Borrower and the Guarantor are each able to pay their debts as they mature.
22
3.12. Organization and Qualification. To the extent required by Governmental Requirement,
the Borrower and each Special Purpose Entity is duly qualified to conduct business in the state in
which the Mortgaged Property is located.
3.13. Right and Power; Corporate Authority. The Borrower and each Special Purpose Entity
has full right, power and authority to execute and deliver the Loan Documents contemplated by the
provisions hereof for such Advance and to perform its obligation thereunder. The Borrower has
taken the necessary corporate action to authorize the execution and deliver of such Loan Documents.
3.14. Conflict With Other Instruments. The execution and delivery of the Loan Documents
contemplated by the provisions hereof for such Advance, the consummation of the transactions
contemplated thereby, and the compliance with the terms, conditions and provisions thereof will not
conflict with or result in a breach of
any of the terms, conditions or provisions of the limited partnership agreement of the Borrower and
the operating agreement of each Special Purpose Entity, or, to the Borrower’s actual knowledge, any
law or any regulation, order, writ, injunction or decree of any court or Governmental Authority or
any agreement or instrument (except to the extent required under ground leases applicable to future
Mortgaged Properties) to which the Borrower and each Special Purpose Entity is a party or by which
the Borrower and each Special Purpose Entity or their properties or assets are subject to or bound,
or constitute a default thereunder or result in the creation or imposition of any lien, charge,
security interest or encumbrance of any nature whatsoever upon the Mortgaged Properties or any
other property of the Borrower and each Special Purpose Entity pursuant to the terms of any such
agreement or instrument, except as created by the Loan Documents.
The execution and delivery of the Guaranty, the Guarantor’s guarantee contemplated thereby,
and the compliance with the terms, conditions and provisions thereof will not conflict with or
result in a breach of any of the terms, conditions or provisions of the trust agreement of the
Guarantor, or, to the Guarantor’s actual knowledge, any law or any regulation, order, writ,
injunction or decree of any court or Governmental Authority or any agreement or instrument to which
the Guarantor is a party or by which the Guarantor or its properties or assets are subject to or
bound.
3.15. Authority, Validity and Binding Effect. The execution and delivery of the Loan
Documents contemplated by the provisions hereof for such Advance, have been duly authorized by all
necessary action on the part of the Borrower and each Special Purpose Entity, and no authorization,
approval or consent by, or filing with, any Governmental Authority or public regulatory authority
is necessary therefor. Such Loan Documents have been duly and validly executed and delivered by
the Borrower and each Special Purpose Entity and constitute legal, valid and binding obligations of
the Borrower and each Special Purpose Entity, enforceable in accordance with their terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency or other laws of general
application affecting the enforcement of creditors’ rights generally and by principles of equity.
3.16. Litigation. There are no actions, suits or proceedings pending or, to the Borrower’s
actual knowledge, threatened, against or affecting the Mortgaged Properties before any court or
Governmental Authority which might have a Material Adverse Effect.
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3.17. Compliance With Governmental Requirements. To Borrower’s knowledge, the intended use
of the Mortgaged Properties complies in all material respects with all applicable Governmental
Requirements, as the same may be modified by any applicable variances and exceptions, to Borrower’s
knowledge, and all material provisions of any applicable restrictive covenants, and to Borrower’s
knowledge, the Borrower has obtained all material required permits with respect to the operation
and use of such Mortgaged Properties.
3.18. Utility Services. To Borrower’s knowledge, all utility services necessary for the
use and operation of the Mortgaged Property for such Mortgaged Property are available at the
boundaries of the Mortgaged Property and are located within a public right of way adjacent to the
Mortgaged Property or within an easement benefiting the Mortgaged Property, which easement is
contiguous to the Mortgaged Property and a public right of way, and, to the actual knowledge of
Borrower, such utilities have sufficient capacity to serve such Mortgaged Property.
3.19. Hazardous Materials; Storage Containers; Wetlands. The Borrower and each Special
Purpose Entity have not used Hazardous Materials on, from or affecting the Mortgaged Property in
any manner which violates any Governmental Requirements or Hazardous Materials Laws, and, to the
best of the Borrower’s knowledge, except as disclosed in any written reports and data provided to
the Lenders, no prior owner of such Mortgaged Property or prior occupant thereof, has used
Hazardous Materials on, from or affecting the Mortgaged Property in any manner which violates any
Governmental Requirements or Hazardous Materials Laws. The Borrower further represents to the
Lenders that, except as disclosed in any written reports and data provided to the Lenders, the
Borrower and each Special Purpose Entity have not received any notice of any violations of
Governmental Requirements or Hazardous Materials Laws governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal of Hazardous Materials at
such Mortgaged Property and, to the best of the Borrower’s knowledge, there have been no actions
commenced or threatened by any party for non-compliance with any such laws or regulations at such
Mortgaged Property. The Borrower further represents that, except as disclosed in any written
reports and data provided to the Lenders, no Storage Containers are located on or under such
Mortgaged Property, except in compliance with all applicable Hazardous Materials Laws, and such
Mortgaged Property does not contain any Wetlands.
3.20. Covenants and Restrictions. Except as disclosed in writing to Agent or in any Title
Policy delivered to Agent hereunder, there are no covenants, conditions or restrictions of record
or of which the Borrower has knowledge that prohibit the Mortgaged Property from being used and
operated as contemplated by the Lease for such Mortgaged Property.
3.21. Flood Hazard. To Borrower’s knowledge, except as may be disclosed in any survey or
flood hazard certificate provided to Agent, no part of the Improvements forming a part of the
Mortgaged Property are located in or on an “area having special flood hazards” (“Special Flood
Hazard Area”), as that term is defined in the Flood Disaster Protection Act of 1973, as amended by
the 1994 National Flood Insurance Reform Act, and as otherwise amended. If such Improvements (or
any portion thereof) are located in a Special Flood Hazard Area, to Borrower’s knowledge, the
building floor elevations of such Improvements are located at the height prescribed (if any) by
Governmental Requirements above the designated flood plain elevation for
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the Special Flood Hazard Area, as determined by FEMA. For purposes of this Section 3.21, the defined term
Improvements shall include only walled and roofed buildings.
The representations and warranties contained above and in the other Loan Documents shall be
true on and as of the date of each Advance with the same effect as though such representations and
warranties had been made on and as of each such date.
ARTICLE IV
CONDITIONS OF LENDING
CONDITIONS OF LENDING
The Borrower agrees that the obligation of the Lenders to make an Advance is subject to the
accuracy in all material respects, as of the date hereof and the date of such Advance of the
representations and warranties contained herein and under the other Loan Document, to performance
by the Borrower of its agreements to be performed hereunder and under the other Loan Document on or
before the date of such Advance, and to the satisfaction of the following further conditions:
4.01. Initial Advance. Prior to the initial Advance by the Lenders:
a. Organizational Documents. There shall have been furnished to the Agent by
the Borrower:
i. A copy of the certificate of limited partnership of the Borrower,
together with any and all amendments thereto, filed with the appropriate
Governmental Authorities of the Commonwealth of Virginia;
ii. A copy of the limited partnership agreement of the Borrower,
together with any and all amendments thereto certified by the Guarantor, as
the general partner of Borrower;
iii. An original or a copy of a Certificate of Existence for the
Borrower issued by the appropriate Governmental Authorities of the
Commonwealth of Virginia bearing a recent date;
iv. A copy of the resolutions of the Borrower authorizing the Revolving
Facility and the execution of this Agreement and the Loan Documents
certified by the Guarantor, as the general partner of Borrower;
v. A copy of the articles of organization of each Special Purpose
Entity, together with any and all amendments thereto, filed with the
appropriate Governmental Authorities of the state in which the Special
Purpose Entity is organized;
vi. A copy of the operating agreement of each Special Purpose Entity,
together with any and all amendments thereto, certified by the Borrower;
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vii. An original or copy of a Certificate of Existence for each Special
Purpose Entity issued by the appropriate Governmental Authorities for the
state in which the Special Purpose Entity is organized;
viii. A copy of the trust agreement for the Guarantor, together with
any and all amendments thereto, certified by the Secretary thereof;
ix. A copy of the resolutions of the Guarantor authorizing the
Guaranty, certified by the Secretary of Guarantor; and
x. An original or a copy of a Certificate of Existence for the
Guarantor issued by the appropriate Governmental Authorities of the State of
Maryland.
b. Borrower’s Counsel Opinion. The Borrower shall furnish to the Lenders an
opinion of counsel for the Borrower, the Guarantor and the Special Purpose Entities in form
and substance reasonably acceptable to the Lenders.
c. Notes/Loan Documents. The Borrower shall have executed and delivered to the
Lenders the Notes, the LOC Facility Note and the applicable Loan Documents with blanks
appropriately completed.
d. Guaranty. The Guarantor shall have executed and delivered to the Agent the
Guaranty.
4.02. Mortgaged Properties. With respect to each of the Mortgaged Properties, the Borrower
shall have satisfied each of the following conditions:
a. Organizational Documents. There shall have been furnished to the Agent by
the Borrower:
i. A certificate of the Borrower, certifying that no amendments or
modifications have been made to the limited partnership agreement of the
Borrower furnished to the Agent pursuant to Section 4.01(a) hereof,
other than such amendments or modifications as have been furnished to the
Agent pursuant to Section 6.12 hereof.
ii. An original or copy of a Certificate of Existence for the Borrower
and each Special Purpose Entity issued by the Secretary of State of Virginia
or the state in which a Special Purpose Entity is organized, as applicable,
bearing a recent date;
iii. To the extent required by Governmental Requirement, an original or
copy of a Certificate of Authority for the Borrower, if applicable, and each
Special Purpose Entity as a foreign limited liability
company doing business in the state in which the Mortgaged Property is
located;
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iv. A copy of the resolutions of Borrower authorizing the Advance and
the execution of the Loan Documents contemplated by the provisions hereof
for such Advance;
v. A certificate of the Guarantor certifying that no amendments or
modifications have been made to the trust agreement of the Guarantor
furnished to the Lenders pursuant to Section 4.01(ix) hereof;
vi. An original or copy of a Certificate of Existence for the Guarantor
issued by the Secretary of State of Maryland bearing a recent date; and
vii. A copy of the resolutions of the Guarantor authorizing such
Advance or for all Advances made pursuant to this Agreement.
b. Borrower’s Counsel Opinion. The Borrower shall furnish to the Lenders the
opinions of counsel for the Borrower, each Special Purpose Entity and the Guarantor in form
and substance reasonably acceptable to the Lenders.
c. Project Agreement. The Agent, the Borrower and each Special Purpose Entity
shall have entered into a satisfactory Project Agreement with respect to a Mortgaged
Property.
d. Security Documents. There shall have been executed and delivered to the
Agent the following security documents with respect to such Mortgaged Property:
i. a Mortgage which shall constitute a first mortgage or deed of trust
lien, as applicable, on the Borrower’s and each Special Purpose Entity’s fee
simple interest in such Mortgaged Property or Borrower’s or a Special
Purpose Entity’s interest in the ground lease (which ground lease shall be
in form and substance acceptable to the Lenders and which ground lease shall
have no less than 35 years remaining on its lease term and the lessor
thereunder shall provide Lenders with an estoppel letter containing lender
protection provisions acceptable to Lenders);
ii. an Assignment of Rents and Leases pursuant to which the Borrower
shall have collaterally assigned to the Lenders all the right, title and
interest of the Borrower and each Special Purpose Entity as landlord in and
to all existing and future leases of space in such Mortgaged Property,
including, without limitation, the Lease for such Mortgaged Property, and
all rentals and other monies due and to become due under said leases;
iii. an Assignment pursuant to which the Borrower and each Special
Purpose Entity shall have collaterally assigned to the Lenders all the
right, title and interest of the Borrower and each Special Purpose
27
Entity in
and to the material permits, licenses, warranties and other agreements in
respect of such Mortgaged Property; and
iv. if the Borrower or a Special Purpose Entity has then entered into a
Mortgaged Property Sale Agreement for such Mortgaged Property, a Collateral
Assignment of Mortgaged Property Sale Agreement pursuant to which the
Borrower and a Special Purpose Entity shall have collaterally assigned to
the Lenders all the right, title and interest of the Borrower and a Special
Purpose Entity in, to and under such Mortgaged Property Sale Agreement and
the Deposit made thereunder.
Each of the above-described collateral documents shall be properly completed and
reflect only such further changes as may be necessary to comply with the requirements of the
jurisdiction in which such Mortgaged Property is located.
e. Borrower’s Affidavit. The Borrower and the applicable Special Purpose
Entity shall have furnished to the Lenders an executed Borrower’s Affidavit with respect to
such Mortgaged Property.
f. Environmental Indemnity. The Borrower, the applicable Special Purpose
Entity and the Guarantor shall have furnished to the Lenders an executed Environmental
Indemnity Agreement with respect to such Mortgaged Property.
g. Title Policy. A Title Company shall have issued and delivered to the Agent
a policy of title insurance acceptable to the Lenders insuring the priority of the lien of
the Mortgage encumbering such Mortgaged Property in an amount of not less than the purchase
price paid by Borrower or the applicable Special Purpose Entity for the purchase of the
Mortgaged Property. The Title Policy shall have an effective date of no earlier than the
date of such Advance, shall provide extended coverage (i.e., all preprinted or standard
exceptions shall be deleted), a 3.1 zoning endorsement (if such endorsement is selected by
the Borrower pursuant to Section 4.01(i)(i) hereof to evidence proper zoning of the
Mortgaged Property), an access endorsement, a comprehensive endorsement, a subdivision
endorsement (where necessary), a last dollar endorsement, a contiguity endorsement (if
needed), a revolving credit endorsement and affirmative coverage with respect to filed or
unfiled mechanic’s lien (where available at reasonable cost) and shall be subject only to
such exceptions as may be reasonably approved by the Agent.
h. Survey. The Borrower shall have furnished to the Agent an Urban Class
ALTA/ACSM Minimum Standard Detail Survey (including Items 1,3,4,6,7,8,9,10,11 and 13 of
Table A thereof or such provisions thereof as are acceptable to Agent) of the Mortgaged
Property, made by a registered engineer or surveyor licensed by the state in which such
Mortgaged Property is located and reasonably satisfactory to the Agent and the Title Company
and certified to each of them as of a date not more than sixty (60) days
prior to the date of the Advance made in respect of such Mortgaged Property the
boundaries of such Mortgaged Property, the actual location of the Improvements located on
such Mortgaged Property, all building setback lines, easements, rights of way and
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encroachments affecting such Mortgaged Property and other matters apparent thereon and the
relation of such Mortgaged Property to public thoroughfares for access purposes, certifying
that the Improvements (excluding Improvements that are not walled and roofed buildings)
located on the Mortgaged Property are not located within a special flood hazard area as
defined by the Flood Disaster Protection Act of 1973, and showing the number of the Flood
Insurance Rate Map on which such Mortgaged Property is shown and the date of such map, and
shall specify the flood hazard zone in which such Mortgaged Property is situated. Such
survey shall be reasonably acceptable to the Agent and shall not disclose, in the Agent’s
reasonable opinion, any facts or circumstances which materially affect or could materially
affect the marketability of such Mortgaged Property or the Borrower’s ability to sell or
finance such Mortgaged Property.
i. Approvals and Permits. The Borrower shall submit to the Agent evidence
reasonably satisfactory to the Agent to the effect that:
i. The Mortgaged Property is presently zoned to permit its use and
operation as contemplated by the Borrower or the applicable Special Purpose
Entity for such Mortgaged Property, which evidence may be a 3.1 zoning
endorsement issued by the Title Company or a satisfactory opinion of counsel
admitted to practice in the state in which such Mortgaged Property is
located or a zoning confirmation letter of the Governmental Authority having
zoning jurisdiction over such Mortgaged Property;
ii. The Borrower has obtained such access easements and utility
easements, if any, as may be reasonably necessary for the contemplated use
of such Mortgaged Property and such easements are insured under the Title
Policy;
iii. All required permits, licenses and approvals for the use and
operation of such Mortgaged Property (including a permanent occupancy permit
or a certificate of occupancy, if issued by the jurisdiction in which such
Mortgaged Property is located) have been obtained from the applicable
Governmental Authorities; and
iv. All utility services necessary for the operation of such Mortgaged
Property are available at the boundaries of the Mortgaged Property and are
located within a public right of way adjacent to the Mortgaged Property or
within an easement benefiting the Mortgaged Property, which easement is
contiguous to the Mortgaged Property and a public right of way, and all such
utilities have the capacity necessary to provide service to such Mortgaged
Property.
j. Insurance. The Borrower shall have furnished to the Agent the insurance
required by the Mortgage encumbering such Mortgaged Property, together with evidence of
payment in full of the premiums thereon.
29
k. Plans and Specifications. To the extent the same are in the Borrower’s or
its agent’s possession, the Borrower shall have furnished to the Agent for its review and
reasonable approval the Plans and Specifications for such Mortgaged Property.
l. Appraisal. The Agent shall have received a written appraisal in a form
acceptable to Lenders. The appraiser providing a Mortgaged Property appraisal will be
selected and directly engaged by the Agent. The cost of a Mortgaged Property appraisal, and
any update thereof as provided below, will be charged to the Borrower and paid by the
Borrower upon the Borrower’s receipt of an invoice therefor; provided, however, Borrower
shall be responsible for the costs of no more than one (1) appraisal or update per year with
respect to a Mortgaged Property, except in the case of a foreclosure. Each Mortgaged
Property appraisal shall be prepared in accordance with the Uniform Standards of
Professional Appraisal Practice applicable to Federally Related Transactions as set out in
Appendix A to the real estate appraisal regulations adopted by the Office of the Comptroller
of the Currency pursuant to the Financial Institutions Reform, Recovery and Enforcement Act
of 1989 (Sub-part C of 12 C.F.R. 34) and shall be prepared in response to an engagement
letter to be issued by the Agent. Agent shall be entitled to order an update to any
Mortgaged Property if Agent reasonably determines in good faith that a Material Adverse
Effect has occurred or is required to do so under applicable banking regulations. Any new
Mortgaged Property appraisal or update to an existing Mortgaged Property appraisal needs to
be approved by the Required Lenders prior to any change in the appraised value of a
Mortgaged Property.
m. Inspecting Architect’s Report. If requested by the Agent, the Lenders shall
have received a satisfactory report of an Inspecting Architect for such Mortgaged Property.
n. Environmental Report. The Borrower shall have furnished to the Agent a copy
of an environmental report by an environmental consulting company reasonably acceptable to
the Agent (the “Environmental Report”) showing that the environmental condition of
such Mortgaged Property is reasonably acceptable to the Agent. The Environmental Report
shall be addressed to the Lenders, or, in the alternative, the Borrower shall provide to the
Agent a letter of the consulting company that prepared the Environmental Report pursuant to
which such consulting company authorizes the Lenders to rely on the Environmental Report.
o. Leases. The Borrower shall have furnished to the Agent a copy of all Leases
for such Mortgaged Property.
p. Major Lease. In the event a Mortgaged Property is subject to a Major Lease
to one Tenant, the Borrower shall have furnished to the Agent an executed Lease for such
Mortgaged Property which shall have a remaining term (excluding optional extension or
renewal periods) acceptable to the Lenders and shall be in a form and
content reasonably acceptable to the Lenders in all other respects, including rental
amounts payable thereunder. Such Lease or a separate document from the Tenant which is
party thereto shall include the agreement of such Tenant to subordinate its interest
thereunder to any first mortgage or deed of trust on such Mortgaged Property upon the
30
request of the mortgagee or the beneficiary thereunder (a “Mortgagee”) and to attorn
to such Mortgagee or any purchaser of such Mortgaged Property at a foreclosure sale or a
sale made under any power of sale or pursuant to a deed in lieu of foreclosure, provided
such Mortgagee agrees to reasonable non-disturbance provisions if the Tenant under such
Lease is not in default beyond any applicable cure period thereunder.
The Borrower shall use reasonable efforts to attempt to obtain the following provisions
in such Major Lease or separate document:
i. The Major Tenant party thereto shall agree to give a Mortgagee by
registered or certified mail, a copy of any notice of default served upon
the landlord, provided that prior to such notice of default such Major
Tenant has been notified in writing, of the existence of such mortgage or
deed of trust and the address of such Mortgagee;
ii. A Mortgagee shall have sixty (60) days after its receipt from such
Major Tenant of written notice of a default by the landlord under such Major
Lease to correct or cure such default; and
iii. Such Major Tenant shall comply with all Hazardous Materials Laws,
and shall not store any Hazardous Materials in, on or under such Mortgaged
Property, except in accordance with applicable laws and regulations.
q. Subordination, Non-Disturbance and Attornment Agreement. The Borrower and
each Special Purpose Entity shall have furnished to the Agent a Subordination,
Non-Disturbance and Attornment Agreement for such Mortgaged Property, executed by the
Borrower or the Special Purpose Entity, the Agent and all Major Tenants and Tenants under
“master leases” of such Mortgaged Property.
r. Damage. Such Mortgaged Property shall not have been materially injured or
damaged by fire or other casualty.
s. Tenant Estoppel. The Borrower shall have furnished to the Agent a tenant
estoppel letter in respect of such Mortgaged Property executed by all Major Tenants and
Tenants under “master leases” of such Mortgaged Property in a form which is reasonably
satisfactory to the Agent and such Tenant, stating that the Lease is in full force and
effect, that landlord is not in default and that Tenant is not aware of any amounts it could
setoff against rent and including such other statements as are reasonably required by the
Agent.
t. Purchase Agreement for Acquisition of Mortgaged Property. The Borrower
shall have furnished to the Agent a copy of the executed purchase agreement pursuant to
which the Borrower has acquired or will acquire such Mortgaged Property and a copy of the
closing statement therefor.
u. Special Flood Hazard Area. If the Improvements (or any portion thereof)
forming a part of such Mortgaged Property (excluding Improvements that are not walled and
roofed buildings) are located in an Special Flood Hazard Area:
31
i. The Borrower shall have furnished evidence satisfactory to the Agent
that the building floor elevations of such Improvements are located at the
height (if any) prescribed by Governmental Requirements above the designated
flood plain elevation for the Special Flood Hazard Area, as determined by
FEMA; and
ii. The Borrower shall have provided to the Agent either: (A) the
flood insurance required by the Mortgage encumbering such Mortgaged
Property, together with evidence of payment in full of the premium thereon,
or (B) a copy of a Letter of Map Revision (“LOMR”) issued by FEMA, removing
such Mortgaged Property from the Special Flood Hazard Area as determined by
FEMA.
4.03. Working Capital Advances. With respect to Advances of the Revolving Facility for
Borrower’s working capital purpose, such Advances will not be made by the Lenders to Borrower upon
application by Borrower which application shall state the intended use of such Advances.
4.04. Subsequent Advances. Prior to any Advance:
a. Representations and Warranties. The representations and warranties
contained herein and in the other Loan Documents shall be true in all material respects on
and as of the date each Advance with the same effect as though such representations and
warranties had been made on and as of each such date.
b. Conditional Default/Event of Default. No Event of Default or Conditional
Default shall have occurred and be continuing or shall exist.
c. Conditions in 4.01. All of the conditions set forth in Section 4.01 hereof
shall remain satisfied.
4.05. Proceedings and Documents. All legal details and proceedings in connection with the
transactions contemplated by this Agreement with respect to a Mortgaged Property shall be in form
and substance reasonably satisfactory to counsel for the Agent, and the Agent shall have received
all such counterpart originals or certified or other copies of such documents and proceedings in
connection with such Mortgaged Property, in form and substance, as to certification and otherwise,
reasonably satisfactory to such counsel, as the Agent or its counsel may request.
ARTICLE V
DISBURSEMENTS
DISBURSEMENTS
5.01. Advances. Subject to the terms and conditions hereof, and relying upon the
representations and warranties herein set forth, the Lenders agree to make Advances to the Borrower
in accordance with, and subject to the following requirements and limitations:
a. Requests for Advances. Not less than five (5) business days prior to the
making of an Advance, the Borrower shall submit to the Agent a Disbursement Request
32
in such
form as the Agent may require setting forth the total amount of the Advance which is
requested. Each Disbursement Request and each receipt of the Advance requested thereby shall
constitute a certification by the Borrower that the representations and warranties contained
in Article III hereof are true and correct on the date of such Disbursement Request or such
receipt, as the case may be.
b. Borrowing Limitations. In no event shall the outstanding principal balance
of Revolving Facility exceed the applicable Borrowing Base.
c. Advances to Cure Defaults; etc. Notwithstanding the foregoing provisions of
this Section 5.01, and without receiving Requests for Advances for such Advances,
the Lenders may at any time or from time to time (i) make Advances to cure any Event of
Default or Conditional Default, (ii) make Advances to pay interest on the Revolving
Facility, (iii) make Advances to pay the reasonable fees and expenses of counsel for the
Agent; and (iv) make Advances to pay the reasonable fees and expenses payable to a Title
Company for the issuance of a Title Policy. Any Advances made pursuant to this subparagraph
(c) shall be evidenced by the Note A, as fully as if made to the Borrower, and shall be paid
by the Borrower upon demand by the Agent. The Agent shall provide written notice to the
Borrower of each Advance made under this subparagraph (c).
ARTICLE VI
BORROWER’S AFFIRMATIVE COVENANTS
BORROWER’S AFFIRMATIVE COVENANTS
The Borrower covenants that until payment in full of the Revolving Facility and performance of
all of the Borrower’s other obligations under the Loan Documents:
6.01. Financial Statements. The Borrower will deliver or cause to be delivered to the
Agent:
a. As soon as practicable, but in any event within ninety (90) days after the close of
each fiscal year of Guarantor, audited financial statements of Guarantor, prepared by a
nationally recognized certified public accounting firm on a consolidated and consolidating
basis for itself and its Subsidiaries, including a balance sheet, statement of income and
retained earnings and a statement of cash flows;
b. As soon as practicable, but in any event within ninety (90) days after the close of
each fiscal year of Borrower, audited financial statements of Borrower, prepared by a
nationally recognized certified public accounting firm on a consolidated and consolidating
basis for itself and its Subsidiaries, including a balance sheet, statement of income and
retained earnings and a statement of cash flows;
c. Within ten (10) days after the same are filed, copies of all reports filed by
Guarantor with the Securities and Exchange Commission;
d. Five (5) days prior to each Advance, a Borrowing Base Certificate (as of the end of
the last calendar month);
33
e. As soon as practicable, but in any event within forty-five (45) days after the end
of each fiscal quarter of the Borrower, certified rent rolls and operating statements for
each of the Mortgaged Properties, together with a Compliance Certificate;
f. Within ninety (90) days after the end of each fiscal year, projected income
statements and balance sheets for Borrower and Guarantor;
g. As soon as possible, but in any event within ten (10) Business Days after the
Borrower becomes aware thereof, a written statement signed by the chief executive officer or
the chief financial officer of the Borrower describing any Reportable Event or Prohibited
Transaction which has occurred with respect to any Plan and the action which the Borrower
proposes to take with respect thereto; and
h. The Borrower will with reasonable promptness furnish to the Agent such additional
financial and other information respecting the financial condition, business or operations
of the Borrower as the Agent may from time to time reasonably request.
All such financial statements shall be prepared in accordance with GAAP applied on a basis
consistent with prior practice unless otherwise specifically noted thereon.
6.02. Notices. The Borrower will promptly give the Agent written notice of:
a. the occurrence or existence of any Event of Default of which the Borrower has actual
knowledge, together with a written statement of the action being taken by the Borrower to
remedy such Event of Default;
b. all litigation or proceedings before any court or Governmental Authority affecting
the Borrower or its properties that the Borrower reasonably determines may have a Material
Adverse Effect or that affects the use or operation of a Mortgaged Property; and
c. any claims against any collateral given by Borrower or Guarantor to secure the
Revolving Facility.
6.03. Access to Books and Inspection. The Borrower will give any officer or representative
of the Agent access to, and permit such representative to examine, copy or make extracts from, any
and all books, records and documents in the possession of the Borrower relating to the Mortgaged
Properties financed with proceeds of the Revolving Facility and to inspect such Mortgaged
Properties (provided such inspections shall not interfere with a Tenant’s use of a Mortgaged
Property), all at such reasonable times and as often as the Agent may reasonably request; provided,
however, that the Agent shall have no obligation to make any such inspections nor have any
responsibility to the Borrower or any person, firm or corporation for any defects or deficiency
which may be or which would have been revealed by any such inspection, whether or not discovered by
the Agent.
6.04. Governmental Requirements. The Borrower will comply with all material Governmental
Requirements (including ERISA) and all material terms of restrictive covenants
34
applicable to the each Mortgaged Property in respect of which Advances have been made and are outstanding.
6.05. Maintenance. The Borrower will maintain each Mortgaged Property in good repair and
safe condition at all times and indemnify and defend and hold the Lenders harmless from any and all
claims relative to the use and occupancy of each Mortgaged Property.
6.06. Insurance. The Borrower will maintain such insurance on each Mortgaged Property in
amounts set forth in the Mortgage for such Mortgaged Property.
6.07. Further Assurances. The Borrower will execute, acknowledge when appropriate, and
deliver from time to time at the request of the Agent, such instruments and documents as in the
reasonable opinion of the Agent are necessary or desirable to perfect the security interests
required herein.
6.08. Failure to Perform. If the Borrower neglects or refuses to pay the costs, premiums,
liabilities or other charges incurred in connection with the Revolving Facility or otherwise fails
to perform its covenants hereunder, the Lenders may do so and may add the cost thereof to the
Revolving Facility as indebtedness evidenced by the Notes, and may collect the same from the
Borrower upon demand with interest thereon at the highest Default Rate until paid thereunder.
6.09. Environmental. The Borrower covenants and agrees to keep or cause each Mortgaged
Property to be kept free of Hazardous Materials in violation of any Governmental Requirement and,
without limiting the
foregoing, the Borrower and each Special Purpose Entity shall not cause or permit any such
Mortgaged Property to be used to generate, manufacture, refine, transport, treat, store, handle,
dispose of, transfer, produce or process Hazardous Materials, except in compliance with all
applicable Governmental Requirements, nor shall the Borrower and each Special Purpose Entity cause
or permit, as a result of any intentional or unintentional act or omission on the part of the
Borrower and each Special Purpose Entity or any tenant, subtenant or occupant, a release of
Hazardous Materials in violation of any Governmental Requirement onto any such Mortgaged Property
or onto any other property.
If Hazardous Materials are present at a Mortgaged Property in violation of the requirements of
this Section 6.09, the Borrower shall immediately notify Agent and:
a. conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions necessary to clean up and remove all Hazardous Materials
on, under or from such Mortgaged Property in accordance with all applicable federal, state
and local laws, ordinances, rules, regulations and policies (including, without limitation,
Hazardous Materials Laws), to the reasonable satisfaction of the Agent, and in accordance
with the orders and directives of all Governmental Authorities;
b. defend, indemnify and hold harmless the Lenders, their employees, agents, officers
and directors (the “Indemnified Parties”) from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs or expenses of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of or in any way related to
any of the following (“Environmental Losses”):
35
i. the presence, disposal, release or threatened release of any
Hazardous Materials on, over, under, from or affecting such Mortgaged
Property or the soil, water, vegetation, buildings, personal property,
persons or animals thereon;
ii. any personal injury (including wrongful death) or property damage
(real or personal) arising out of or related to such Hazardous Materials;
iii. any lawsuit brought or threatened, settlement reached or
government order relating to such Hazardous Materials; and/or
iv. any violation of laws, orders, regulations, requirements or demands
of Governmental Authorities, which are based upon or in any way related to
such Hazardous Materials, including, without limitation, attorney’s and
consultant’s fees, investigation and laboratory fees, court costs and
litigation expenses.
Notwithstanding any provision hereof, the Borrower does not indemnify the Indemnified Parties
against any Environmental Losses (i) caused by any Indemnified Party, (ii) arising from the
breach, violation or threatened violation of any applicable Hazardous Materials Laws which first
occurs after the Indemnified Parties take actual possession of a Mortgaged Property pursuant to a
foreclosure of the Mortgage encumbering the same or pursuant to a transfer
pursuant to a power of sale or deed in lieu of foreclosure thereof; or (iii) any release,
discharge, disposal or presence of Hazardous Materials caused by a receiver of a Mortgaged Property
or which first occurs while a receiver is in possession of such Mortgaged Property.
6.10. Personal Property. Borrower and each Special Purpose Entity shall maintain all
Personal Property and Fixtures incorporated into a Mortgaged Property in accordance with the terms
of the Mortgage encumbering such Mortgaged Property.
6.11. Financing Statements. The Borrower hereby authorizes the Agent to execute one or
more financing statements and renewals and amendments thereof pursuant to the Uniform Commercial
Code of the State of Virginia and the state in which each Special Purpose Entity is organized and
the state in which a Mortgaged Property is located in form satisfactory to the Agent, and will pay
the cost of filing the same in all public offices wherever filing is deemed by the Agent to be
necessary or desirable.
6.12. Organizational Documents. The Borrower shall provide to the Agent copies of any
amendments or modifications to, or replacements of, the Borrower’s certificate or articles of
limited partnership, and the organizational documents of each Special Purpose Entity. The Borrower
shall cause to be provided to the Agent copies of any amendments or modifications to, or
replacements of, the Guarantor’s certificate or articles of incorporation or by-laws.
6.13. USA Patriot Act. Borrower represents and warrants to the Lenders that neither
Borrower nor any entity or individual owning, owned by or under common ownership with Borrower or
any guarantor of the Revolving Facility (each for purpose of this Section 6.14, an
“Affiliate”), is identified in any list of known or suspected terrorists published by any
United
36
States government agency (individually, as each such list may be amended or supplemented
from time to time, referred to as a “Blocked Persons List”), including, without limitation,
(a) the annex to Executive Order 13224 issued on September 23, 2001 by the President of the United
States and (b) the Specially Designated Nationals List published by the United States Office of
Foreign Assets Control. Furthermore, Borrower hereby agrees that if Borrower becomes aware that
Borrower or any Affiliate is identified on any Blocked Persons List, Borrower shall immediately
notify Agent in writing of such information. In the event Borrower or any Affiliate is at any time
identified on any Blocked Persons List, such event shall be an Event of Default, and shall entitle
the Agent and the Lenders to exercise any and all remedies provided hereunder or in any other Loan
Document or otherwise permitted by law. In addition, Agent or any Lender may immediately contact
the Office of Foreign Assets Control and any other governmental agency Agent or such Lender deems
appropriate in order to comply with its legal obligations. Upon the occurrence of such Event of
Default, Agent and Lenders shall forbear enforcement of their rights and remedies during such time
as (1) the party identified in a Blocked Persons List is contesting in good faith by appropriate
legal proceedings such party’s inclusion in a Blocked Persons List and (2) Agent
or any Lender, as the case may be, determines, in its sole and absolute discretion, that such
forbearance will not adversely affect title to, the condition or value of, or any lien in favor of
the Lenders and encumbering any part of the Mortgaged Property or otherwise adversely impact the
ability of the party or Borrower to perform their respective obligations under or with respect to
any Loan Document.
6.14. Mortgaged Property Approval. With respect to a proposed Mortgaged Property, Borrower
shall submit the information required by Exhibit K to the Agent and Agent shall deliver
copies of such information to all of the Lenders, and the Required Lenders shall have approved
those materials identified in Exhibit K attached hereto. In connection with the approval
of a Mortgaged Property, the Required Lenders may impose requirements with respect to the proposed
Mortgaged Property regarding disbursement of any Advance in addition to those set forth herein.
Such additional requirements will be set forth in the Project Agreement to be executed by the Agent
and the Borrower in respect of such Mortgaged Property, which Project Agreement, when executed,
shall be deemed to be a modification and amendment of this Agreement.
Each Lender hereby acknowledges and agrees that the information submitted by Borrower to the
Lenders, including the information identified on Exhibit K is proprietary and confidential
information of Borrower and shall be maintained in confidence by the Lenders and used solely and
exclusively for the purpose of determining such Lender’s consent to the inclusion of such Real
Estate Asset as a Mortgaged Property subject to disclosure to their respective auditors, regulatory
authorities and potential participants in the Revolving Facility.
ARTICLE VII
BORROWER’S NEGATIVE COVENANTS
BORROWER’S NEGATIVE COVENANTS
The Borrower covenants that until payment in full of the Revolving Facility and performance of
all of the Borrower’s other obligations under the Loan Documents:
7.01. Prohibition upon Transfer, Secondary Financing. The Borrower and each Special
Purpose Entity shall not convey, sell (other than pursuant to a Mortgaged Property Sale
37
Agreement), lease (other than pursuant to a Lease) or otherwise dispose of all or any part of a Mortgaged
Property or any interest therein (legal or equitable) (other than in connection with any Mezzanine
Debt), or grant any security interest or lien with respect to such Mortgaged Property, unless in
connection therewith the applicable Mortgage Release Price is paid to the Lenders; provided,
however, Borrower and each Special Purpose Entity shall be entitled to waive its landlord lien, if
required by a Tenant.
7.02. Easements. The Borrower and each Special Purpose Entity will not enter into any
easement affecting a Mortgaged Property without first obtaining the Agent’s written approval, which
approval will not be unreasonably delayed or withheld or conditioned upon payment of fees, of such
easement and the terms and conditions thereof; provided, however, no such approval shall be
required if such easement is granted in the ordinary course of business and provides reasonable
benefit to
such Mortgaged Property. The Borrower shall provide to the Agent an executed copy of any easement
entered into in respect of a Mortgaged Property in respect of which an Advance has been made and
remains outstanding.
7.03. Lease/Mortgaged Property Sale Agreement. The Borrower and each Special Purpose
Entity may, in the ordinary course of business, enter into, modify, amend, alter, terminate or
cancel any Lease (other than a Major Lease). The Borrower and each Special Purpose Entity will not
enter into, modify, amend, alter, terminate or cancel any Major Lease for a Mortgaged Property, or
assign, transfer, pledge or encumber any of its right, title or interest under any Lease, without
the Agent’s prior written consent, which consent will not be unreasonably delayed or withheld or
conditioned upon payment of fees, or payment of the Mortgage Release Price for such Mortgaged
Property to the Lenders. The Agent shall not unreasonably withhold or delay its consent to a
modification, amendment or alteration to such a Major Lease. If the Borrower or a Special Purpose
Entity enters into a Mortgaged Property Sale Agreement for a Mortgaged Property, the Borrower or a
Special Purpose Entity will provide to the Agent a copy of the same within twenty (20) Business
Days after the execution thereof.
7.04. Margin Stock. The Borrower shall not use or cause or permit any of the proceeds of
the Revolving Facility to be used, either directly or indirectly, for the purpose whether
immediate, incidental or remote of purchasing or carrying any margin stock within the meaning of
Regulation U or of extending credit to others for the purpose of purchasing or carrying any margin
stock, and the Borrower shall furnish to the Agent, upon its request, a statement in conformity
with the requirements of Federal Reserve Board Form U-1 referred to in Regulation U. Further, no
part of the proceeds of the Revolving Facility will be used for any purpose that violates, or which
is inconsistent with, the provisions of Regulations G, T, U or X of the Board of Governors of the
Federal Reserve System.
7.05. Change Name and Place of Business. The Borrower or a Special Purpose Entity shall
not change its corporate name or principal place of business, except on not less than fifteen (15)
days’ prior written notice to the Agent.
7.06. Benefit Plans. The Borrower shall not permit any condition to exist in connection
with any employee benefit plan which might constitute grounds for the PBGC to institute proceedings
to have the employee benefit plan terminated or a trustee appointed to administer the employee
benefit plan; or engage in, or permit to exist or occur any other condition, event or
38
transaction with respect to any employee benefit plan which could result in the Borrower incurring any material
liability, fine or penalty.
7.07. Restricted Assets. The Consolidated Group shall not construct, acquire or otherwise
own nursing homes, congregate care or assisted living facilities or acquire any undeveloped real
estate which the Consolidated Group does not intend to construct a Real Estate Asset thereon or a
portion thereof (collectively, the “Restricted Assets”) unless Borrower delivers to Agent
copies of resolutions authorizing such acquisitions and the aggregate value of all such Restricted
Assets does not exceed Ten Percent (10%) of the Total Current Value of Assets.
7.08. Recourse Indebtedness. Other than the Revolving Facility and the Construction Loans,
Borrower, Guarantor and the Special Purpose Entities will not have outstanding Recourse
Indebtedness in excess of thirty percent (30%) of the Total Current Value of Assets.
7.09. Mortgaged Properties Debt Service Coverage Ratio. Borrower will not allow the
Mortgaged Properties Debt Service Coverage Ratio to be less than 1.40 to 1.00.
7.10. Mezzanine Debt. Other than the Mezzanine Debt, the Consolidated Group will not incur
any additional Mezzanine Debt.
7.11. Asset Value of Real Estate Assets. The total asset value of all projects under
construction (measured by the Real Estate Assets Budget Amount) shall not exceed thirty-five
percent (35%) of the Total Current Value of Assets.
7.12. Dissolve, Liquidate, Merge, Etc. The Borrower, Guarantor or any Special Purpose
Entity shall not dissolve, liquidate, enter into any consolidation or merger with, or acquisition
of, any other Person. Notwithstanding the foregoing, Borrower or a Special Purpose Entity may,
without the written consent of Agent (A) transfer limited partnership interests or membership units
in the Borrower or a Special Purpose Entity, as applicable, (B) replace the general partner for the
Borrower or the manager of a Special Purpose Entity with a wholly owned Subsidiary of Guarantor,
(C) convert interests in the Borrower into interests in Guarantor, and (D) issue additional limited
partnership units or other securities, even if such issuance results in a reduction of the
partnership interest of Guarantor in the Borrower, provided that, after giving effect to such
transactions, transfer or series of transfers described in (A), (B), (C) and (D), Guarantor or a
wholly owned Subsidiary of Guarantor owns more than fifty-one percent (51%) of the partnership
interests of the Borrower and the Borrower owns more than fifty-one percent (51%) of the Special
Purpose Entity and the Guarantor has managerial control over Borrower and Borrower has managerial
control over the applicable Special Purpose Entity.
7.13. Value of Undeveloped Land. The total asset value of all undeveloped land owned by the Consolidated Group (excluding the
value of any land under construction) shall not exceed Five Percent (5%) of the Total Current Value
of Assets.
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ARTICLE VIII
DEFAULTS
DEFAULTS
8.01. Events of Default. The Borrower agrees each of the following described events shall
constitute an “Event of Default” hereunder:
a. The Borrower shall fail to make any payment under the Notes within ten (10) days
after the date the same are due and payable; or
b. Any representation or warranty made by the Borrower herein, in any other Loan
Document or in any certificate, financial statement or other document furnished by the
Borrower or a Special Purpose Entity pursuant to the provisions hereof, shall prove to have
been materially false or misleading as of the time made or furnished, and the Borrower does
not, within thirty (30) days after the earlier of receiving written notice from the Agent or
the Borrower’s own determination that such representation or warranty is false or
misleading, commence and complete such actions as are necessary to make such warranty or
representation true and accurate; provided, however, that the Borrower shall not be entitled
to the foregoing cure period if the Borrower had actual knowledge that such representation
or warranty was false or misleading when made; or
c. The Borrower shall default in the performance or observance of the covenants
contained in Article VII hereof, and such default has not been cured or corrected within
thirty (30) days following written notice from the Agent to the Borrower; provided, however,
that if such default is of such a nature that it cannot be cured or corrected within such
thirty (30) day period, the Borrower shall be entitled to such additional time as may be
necessary to cure or correct such default if the Borrower promptly commences such cure or
corrective action and diligently pursues such cure or corrective action to completion; or
d. The Borrower shall default in the performance or observance of any other covenant,
condition or provision herein contained including those set forth in this Article VIII for
which no specific grace or cure period is set forth, and such default has not been cured or
corrected within thirty (30) days following written notice from the Agent to the Borrower;
provided, however, that if such default is of such a nature that it cannot be cured or
corrected within such thirty (30) day period, the Borrower shall be entitled to such
additional time as may be necessary to cure or correct such default if the Borrower promptly
commences such cure or corrective action and diligently pursues such cure or corrective
action to completion; provided, further, however, there shall be no grace or cure period
afforded to Borrower for any Event of Default set forth under Sections 8.01(o) through
8.01(s) below; or
e. The Borrower shall default in the performance or observance of any covenant,
condition or provision contained in any other Loan Document to which the Borrower is a
party, and such default shall continue uncured after any applicable cure or grace period, or
if such Loan Document does not contain an applicable cure period, such default has not been
cured or corrected within thirty (30) days following written notice from the Agent to the
Borrower; provided, however, that if such default is of such a
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nature that it cannot be
cured or corrected within such thirty (30) day period, the Borrower shall be entitled to
such additional time as may be necessary to cure or correct such default if the Borrower
promptly commences such cure or corrective action and diligently pursues such cure or
corrective action to completion; or
f. The Borrower or a Special Purpose Entity shall neglect, refuse or fail to keep in
full force and effect any permit or approval issued by any Governmental Authority required
for the occupancy or use of a Mortgaged Property and the same is not reinstated within
thirty (30) days after the Borrower receives notice (from any source) that such permit or
approval is no longer in full force and effect; or
g. A Mortgaged Property or any part thereof shall be condemned or damaged by fire or
other casualty in such manner as to preclude, in the Lenders’ sole reasonable judgment, the
restoration of the Improvements forming a part of such Mortgaged Property and the Borrower
fails to substitute an alternate Mortgaged Property within sixty (60) days thereof or fails
to deliver to the Lenders the Mortgage Release Price for such Mortgaged Property; or
h. An accurate survey of a Mortgaged Property at any time shall show that any of the
Improvements constructed thereon materially encroach upon any street, easement, right of way
or adjoining property or violate any set back requirement, unless such encroachment or
violation is satisfactorily insured against under the Title Policy issued in respect of such
Mortgaged Property or was in existence at the time the Lenders approve the Real Estate Asset
as Mortgaged Property and shown on the survey provided to the Agent, or that any adjoining
structure materially encroaches on a Mortgaged Property, unless such encroachment is cured
within sixty (60) days following receipt of notice thereof by the Borrower or was in
existence at the time such Mortgaged Property was mortgaged; or
i. The occurrence of any event which results in or causes a Material Adverse Effect; or
j. A writ of execution or attachment or any similar process shall be issued or levied
against all or any part of or interest in a Mortgaged Property, or any judgment involving
monetary damages shall be entered against the Borrower which shall become a lien on a
Mortgaged Property or any portion thereof or interest therein and such execution, attachment
or similar process or judgment is not released, bonded, satisfied, vacated or stayed within
sixty (60) days after its entry or levy or Borrower fails to deliver to the Lenders the
Mortgage Release Price for such Mortgaged Property within sixty (60) days after the date of
such entry or levy; or
k. The Borrower, a Special Purpose Entity or the Guarantor shall file a voluntary
petition in bankruptcy or shall file any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief for itself under any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for debtors; or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver,
41
liquidator, assignee, custodian, sequestrator (or other similar official) of the Borrower, a Special Purpose
Entity or the Guarantor, or of all or any part of a Mortgaged Property, or of any or all of
the royalties, revenues, rents, issues or profits thereof, or shall make any general
assignment for the benefit of creditors, or shall admit in writing its inability to pay its
debts, as the case may be, generally as they become due, or shall become insolvent or unable
to pay its debts as they mature, or shall make a general assignment for the benefit of
creditors, or shall voluntarily suspend transaction of its business or take any corporate
action in furtherance of the foregoing; or
l. A court of competent jurisdiction shall enter an order, judgment or decree
adjudicating the Borrower, a Special Purpose Entity or the Guarantor as bankrupt or
insolvent or approving a petition filed against the Borrower, a Special Purpose Entity or
the Guarantor seeking any reorganization, dissolution or similar relief under any present or
future federal, state or other statute, law or regulation relating to bankruptcy,
insolvency, or other relief for debtors, and such order, judgment or decree shall remain
unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive) from
the first date of entry thereof; or any trustee, receiver or liquidator of the Borrower, a
Special Purpose Entity or the Guarantor or of all or any part of a Mortgaged Property, or of
any or all of the royalties, revenues, rents, issues or profits thereof, shall be appointed
without the consent or acquiescence of the Borrower, a Special Purpose Entity or the
Guarantor, as the case may be, and such appointment shall remain unvacated and unstayed for
an aggregate period of sixty (60) days (whether or not consecutive); or
m. The Borrower or a Special Purpose Entity has breached or defaulted under the Lease
for a Mortgaged Property which results in a Material Adverse Effect, and such breach or
default has not been cured or corrected within any applicable cure period provided under
such Lease; or
n. Guarantor sells, assigns, hypothecates, pledges or otherwise transfers its interest
as a partner of the Borrower; or
o. The Leverage Ratio exceeds Seventy Percent (70%) and the same is not cured within
ninety (90) days after written notice from the Agent to Borrower; or
p. At any time, the Minimum Tangible Worth of the Borrower is less than One Hundred
Twenty Million Dollars ($120,000,000) plus Seventy-Five Percent (75%) of additional net
proceeds of future stock sales; or
q. Guarantor’s dividends exceed One Hundred Percent (100%) of its funds from operations
as determined in accordance with NAREIT in any calendar year; or
r. At any time, the aggregate occupancy of the Mortgaged Properties is less than
Eighty-Five Percent (85%), inclusive of occupancy with respect to master leases and
occupancy agreements approved by Agent; or
s. At any time, the Debt Service Coverage Ratio is less than 1.8 to 1.0 during any
calendar quarter; or
42
t. There occurs a Reportable Event or a Prohibited Transaction under, or any complete
or partial withdrawal from, or any other event which would constitute grounds for
termination of or the appointment of a trustee to administer, any “plan” maintained by the
Borrower or any ERISA Affiliate for the benefit of its “employees” (as such terms are
defined in ERISA) which could have a Material Adverse Effect; or
u. Xxxx Klipsch shall cease to be Chairman and CEO of Guarantor or Xxxx Xxxxxx shall
cease to be President and Chief Operating Officer of Borrower and replacements acceptable to
Required Lenders are not in place within ninety (90) days.
If any Event of Default described in Section 8.01(k) or (l) occurs the Lenders shall
be under no further obligation to make any Advances and the Revolving Facility and all interest
accrued thereon and any penalty or premium thereunder and all other liabilities of the Borrower
hereunder, thereunder and under the other Loan Documents shall thereupon become and be immediately
due and payable without any election or action on the part of the Lenders, and without presentment,
demand, protest, or notice of any kind, all of which are hereby expressly waived, and if any other
Event of Default described in Section 8.01 occurs and, if there is a cure period, is not
cured as set forth herein, the Lenders shall terminate their commitments to make Advances hereunder
and declare the Revolving Facility and all interest accrued thereon and any penalty or premium
thereunder pursuant to Section 2.07 hereof and all other liabilities of the Borrower
hereunder, thereunder and under the other Loan Documents to be due and payable, whereupon the same
shall become and be immediately due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived.
8.02. Special Remedies. If an Event of Default shall exist, the Lenders shall have the
right, in addition to any rights or remedies available to them under the Loan Documents or
otherwise available to them at law or in equity, to enter upon and take possession of the Mortgaged
Properties. For purposes of this Section 8.02, the Borrower agrees that the Lenders shall
have the right, and hereby irrevocably constitutes and appoints the Agent its true and lawful
attorney-in-fact, coupled with an interest, with full power of substitution, to (i) prosecute and
defend all actions or proceedings in connection with the Mortgaged Properties and to take such
action and require such performance as the Lenders deem necessary in connection therewith; and (ii)
generally do any and every act with respect to the occupancy and use of such Mortgaged Properties
as the Borrower or a Special Purpose Entity may do in its own behalf. Should the unadvanced
portion of the Revolving Facility be insufficient to pay the sums expended or incurred by the
Lenders for any of the foregoing purposes, the amount of the deficiency shall be added to the
indebtedness evidenced by the Notes and in all events shall be secured by the lien of the Loan
Documents and shall be
paid by the Borrower to the Lenders on demand with interest thereon at the respective Default Rates
until paid.
ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
9.01. No Implied Waiver; Cumulative Remedies; Writing Required. No delay or failure of the
Lenders in exercising any right, power or privilege hereunder (or under any Loan Document) shall
affect such right, power or privilege, nor shall any single or partial exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power or privilege
43
preclude any further exercise thereof or of any other right, power or privilege. The rights and remedies of the
Lenders hereunder and under the other Loan Documents are cumulative and not exclusive of any rights
or remedies which it would otherwise have. Any waiver, permit, consent or approval of any kind or
character on the part of the Lenders of any breach or default under this Agreement or any other
Loan Document, or any waiver by the Lenders of any provision or condition of this Agreement or any
other Loan Document, must be in writing and shall be effective only to the extent as may be
specifically set forth in such writing.
9.02. Taxes. The Borrower shall pay any and all stamp, document, mortgage, intangibles,
transfer and recording taxes, fees (including notary fees and mortgage/deed of trust release fees)
and similar impositions payable or hereafter determined to be payable in connection with the
execution, delivery and/or recording and release of the Loan Documents, and the Borrower agrees to
save the Lenders harmless from and against any and all present or future claims or liabilities with
respect to, or resulting from, any delay in paying or omitting to pay any such taxes, fees or
similar impositions.
9.03. Modifications and Amendments. Upon execution thereof, each Project Agreement shall
automatically be deemed to be an amendment of this Agreement, which amendment shall apply, however,
only to the Mortgaged Property which is the subject of such Project Agreement.
9.04. Holidays. Except as otherwise provided herein, whenever any payment or action to be
made or taken under any of the Loan Documents shall be stated to be due or to be performed on a day
which is not a business day, such payment or action shall be made or taken on the next-following
business day and such extension of time shall be included in computing interest or fees, if any, in
connection with such payment or action.
9.05. Notices. All notices, statements, requests and demands given to or made upon either
party hereto in accordance with the provisions of this Agreement shall be deemed to have been given
or made
one (1) day after the same are deposited with a nationally recognized overnight delivery service,
or immediately upon receipt, if delivered by courier, addressed as follows:
If to the Agent: | The Huntington National Bank | |||
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
Xxxxxxxxxxxx, XX 00000 | ||||
Attention: Xxxxxxx X. Xxxx | ||||
Telephone: (000) 000-0000 | ||||
Facsimile: (000) 000-0000 | ||||
With a copy to: | Xxxxxx & Xxxxxxxxx LLP | |||
00 Xxxxx Xxxxxxxx Xxxxxx | ||||
Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
Attention: Xxxx X. Xxxxxx | ||||
Telephone: (000) 000-0000 | ||||
Facsimile: (000) 000-0000 |
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If to the Borrower: | Windrose Medical Properties, L.P. | |||
0000 Xxxxxxxx Xxxxx, Xxxxx 000 | ||||
Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
Attention: Xxxxxxxxx X. Xxxxxx | ||||
Telephone: (000) 000-0000 | ||||
Facsimile: (000) 000-0000 | ||||
With a copy to: | Xxxxxx X. Xxxxxx | |||
Secretary and General Counsel | ||||
0000 Xxxxxxxx Xxxxx, Xxxxx 000 | ||||
Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
Telephone: (000) 000-0000 | ||||
Facsimile: (000) 000-0000 |
or in accordance with the latest unrevoked written direction from either party to the other party
hereto. Failure of the Agent to furnish the Borrower’s attorney with a copy of any notice provided
to the Borrower hereunder shall not be deemed a failure of the Agent to provide the Borrower with
such notice and shall not affect, or in any way prevent or estop the Lenders from exercising, any
right or remedy of the Lenders hereunder or under any of the other Loan Documents.
9.06. Reimbursement for Certain Expenses. All reasonable costs incidental to the Revolving
Facility and all Advances thereof, including, but not limited to, title insurance premiums, survey
charges, appraisal fees, insurance premiums, inspecting engineers’ and/or architects’ fees,
attorneys’ costs of the Agent and fees and any and all other incidental expenses of the Agent,
shall be paid by the Borrower, together with any other fees agreed upon by Borrower, Agent and
Lenders. All such fees and expenses shall be paid upon the receipt of a statement therefor.
9.07. No Third Party Rights. Nothing in this Agreement, whether express or implied, shall
be construed to give to any Person other than the parties hereto any legal or equitable right,
remedy or claim under or in respect of this Agreement or any other Loan Document, which is intended
for the sole and exclusive benefit of the parties hereto and thereto.
9.08. Interest Limitation. Notwithstanding anything to the contrary contained herein or in
any of the other Loan Documents, the obligations of the Borrower to the Lenders under this
Agreement and any other Loan Documents are subject to the limitation that payments of interest to
the Lenders shall not be required to the extent that receipt by the Lenders of any such payment by
the Borrower would be contrary to provisions of governmental requirements applicable to the Lenders
which limit the maximum rate of interest which may be charged or collected by the Lenders.
9.09. Severability. The provisions of this Agreement are intended to be severable. If any
provision of this Agreement shall be held invalid or unenforceable in whole or in part in any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
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9.10. Governing Law. THE BORROWER AGREES WITH THE LENDERS THAT, EXCEPT AS EXPRESSLY SET
FORTH IN THE MORTGAGES AND THE ASSIGNMENTS OF RENTS AND ANY OTHER LOAN DOCUMENTS, THE LAW OF THE
STATE OF INDIANA SHALL GOVERN ALL MATTERS RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
AND ALL OF THE INDEBTEDNESS OR OBLIGATIONS OF THE BORROWER ARISING HEREUNDER OR THEREUNDER. THE
BORROWER (a) SHALL BE SUBJECT TO PERSONAL JURISDICTION IN THE STATE OF INDIANA AND THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA LOCATED IN STATE OF INDIANA (AND ANY APPELLATE COURTS
TAKING APPEALS THEREFROM) FOR THE ENFORCEMENT OF THE BORROWER’S OBLIGATIONS HEREUNDER AND UNDER THE
OTHER LOAN DOCUMENTS AND (b) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY OTHER STATE TO
OBJECT TO JURISDICTION WITHIN INDIANA FOR THE PURPOSES OF SUCH ACTION, SUIT, PROCEEDING OR
LITIGATION TO ENFORCE SUCH OBLIGATIONS OF THE BORROWER. THE BORROWER WAIVES AND AGREES NOT TO
ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS (x)THAT IT IS NOT SUBJECT TO SUCH JURISDICTION OR THAT SUCH ACTION,
SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT THIS AGREEMENT
AND SUCH OTHER LOAN DOCUMENTS MAY NOT BE ENFORCED IN OR BY THOSE COURTS OR THAT IT IS EXEMPT OR
IMMUNE FROM EXECUTION, (y) THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN
AN INCONVENIENT FORUM, OR (z) THAT THE VENUE OF THE ACTION, SUIT OR PROCEEDING IS IMPROPER.
NOTHING IN THIS SECTION 9.10 SHALL BE DEEMED TO PRECLUDE THE LENDERS FROM FILING ANY
ACTION, SUIT OR PROCEEDING IN RESPECT OF THIS AGREEMENT OR SUCH OTHER LOAN DOCUMENTS IN THE STATE
IN WHICH THE BORROWER HAS ITS CHIEF EXECUTIVE OFFICE OR THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA LOCATED IN THE STATE IN WHICH THE BORROWER HAS ITS CHIEF EXECUTIVE OFFICE, OR THE STATE IN
WHICH A MORTGAGED PROPERTY IS LOCATED OR THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED
IN THE STATE IN WHICH A MORTGAGED PROPERTY IS LOCATED.
9.11. Certain Fees. No broker’s or finder’s fee or commission will be payable with respect
to the Revolving Facility, this Agreement, or the other Loan Documents, or any of the transactions
contemplated hereby, and the Borrower hereby indemnifies the Lenders against, and agrees that it
will hold the Lenders harmless from, any claim, demand, or liability for any such broker’s or
finder’s fee or commission alleged to have been incurred in connection herewith or therewith and
any expenses (including reasonable fees, expenses, and disbursements of counsel) arising in
connection with any such claim, demand, or liability.
9.12. Survival. All representations, warranties, covenants, agreements and obligations of
the Borrower contained in this Agreement, as amended or supplemented from time to time, shall
survive the making of Advances and shall continue in full force and effect so long as the Revolving
Facility is outstanding and until payment and performance in full of all of the Borrower’s
obligation thereunder and under the Loan Documents.
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9.13. Counterparts. This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which, when so executed and
delivered by the parties, shall constitute an original but all such counterparts together
constituting but one and the same instrument.
9.14. Successors and Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the Lenders, the Borrower and their respective successors and assigns, except that the
Borrower may not assign or transfer its rights and obligations hereunder or any interest herein
without the prior written consent of the Lenders.
9.15. Time of Essence. Time is of the essence under the Loan Documents.
9.16. No Joint Venture. Notwithstanding anything to the contrary herein contained or
implied, the Lenders, by this Agreement, or by any action pursuant hereto, shall not be deemed to
be a partner of, or a joint venturer with, the Borrower, and the Borrower hereby indemnifies and
agrees to defend and hold the Lenders harmless, including the payment of reasonable attorneys’
fees, from any loss resulting from any judicial construction of the parties’ relationship as such.
1.01. Lenders Not in Control. . None of the covenants or other provisions contained in the
Loan Documents shall, or shall be deemed to, give the Lenders the rights or power to exercise
control over the affairs and/or management of the Borrower, the power of the Lenders being limited
to the right to exercise the rights and remedies provided to it in the Loan Documents.
9.17. Waiver of Jury Trial. The Borrower and the Lenders, after consulting or having had
the opportunity to consult with counsel, knowingly, voluntarily and intentionally waives any right
they may have to a trial by jury in any litigation based upon or arising out of the Revolving
Facility, this Agreement or any other Loan Document or any of the transactions contemplated hereby
or by any other Loan Document or any course of conduct, dealing, statements, whether oral or
written, or actions of the Borrower or the Lenders. Neither the Borrower nor the Lenders shall seek
to consolidate, by counterclaim or otherwise, any action in which a jury trial has been waived with
any other action in which a jury trial cannot be or has not been waived. These provisions shall
not be deemed to have been modified in any respect or relinquished by the Lenders or the Borrower
except by written instrument executed by both the Borrower and the Lenders.
ARTICLE X
ASSIGNMENT AND PARTICIPATIONS
ASSIGNMENT AND PARTICIPATIONS
10.01. Several Liability. Anything contained in this Agreement to the contrary
notwithstanding, the obligations of the Lenders to Borrower under this Agreement are several and
not joint and several; each Lender shall only be obligated to fund its Percentage of each
disbursement to be made hereunder up to the amount of its Commitment.
10.02. Assignments and Participations.
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a. Each Lender shall have the right to assign, transfer, sell, negotiate, pledge or
otherwise hypothecate this Agreement and any of its rights and security hereunder and under
the other Loan Documents to any other lending institution (an “Assignee”) with the
prior written consent of the Agent and with the prior written consent of Borrower, which
consents by the Agent and the Borrower shall not be unreasonably withheld, conditioned or
delayed (provided that no consent of Borrower shall be required if the Assignee is also a
Lender or if an Event of Default then exists) and no consent of the Agent shall be required
if the Assignee is also a Lender; provided, however, that (i) the parties to each such
assignment shall execute and deliver to Agent, for its approval and acceptance, an
Assignment and Acceptance, (ii) each such assignment shall be of a constant, and not a
varying, percentage of the assigning Lender’s rights and obligations under this
Agreement, (iii) unless the Agent and, so long as no Event of Default exists, Borrower
otherwise consent, the aggregate amount of the Commitment of the assigning Lender being
assigned pursuant to each such assignment shall in no event be less than Five Million
Dollars ($5,000,000), and (iv) if the assignment is less than the assigning Lender’s entire
interest in the Revolving Facility, the assigning Lender must retain at least a Five Million
Dollar ($5,000,000) interest in the Revolving Facility. The Agent may designate any
Assignee accepting an assignment of a specified portion of the Revolving Facility to be a
Co-Agent, an “Arranger” or similar title, but such designation shall not confer on such
Assignee the rights or duties of the Agent. Upon such execution, delivery, approval and
acceptance, and upon the effective date specified in the applicable Assignment and
Acceptance, (a) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and under the other Loan
Documents, and Borrower hereby agrees that all of the rights and remedies of the Lenders in
connection with the interest so assigned shall be enforceable against Borrower by an
Assignee with the same force and effect and to the same extent as the same would have been
enforceable but for such assignment, and (b) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder and under the other Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations hereunder and thereunder. Notwithstanding the foregoing, if,
as a result of such assignment by a Lender (or by entities of which a Lender or Lenders are
subsidiaries), a Lender or two or more Lenders that are, directly or indirectly,
subsidiaries of a common parent (collectively, “Merged Lenders”) hold a Commitment
or Commitments in an aggregate amount exceeding the amount of the Commitment held by the
Agent, the Agent may, at its election, but without any obligation to do so, acquire from
such Lender or Merged Lenders a portion of its or their Commitments and rights and
obligations hereunder in an amount necessary to reduce the aggregate amount of the
Commitments of the Merged Lenders, and to increase the Commitment of the Agent, to equal
amounts. Such election shall be exercisable by notice from the Agent to the Merged Lenders
and shall be effected, on a date designated in such notice.
b. By executing and delivering an Assignment and Acceptance, the assigning Lender
thereunder and the Assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) except as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes no
48
responsibility with
respect to any statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other Loan Document or any other
instrument or document furnished in connection therewith; (ii) such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to the financial
condition of the Borrower, Guarantor or any Special Purpose Entity or the performance or
observance by the Borrower, Guarantor or any Special Purpose Entity of any of its
obligations under any Loan Document or any other instrument or document furnished in
connection therewith; (iii) such Assignee confirms that it has received a copy of this
Agreement together with such financial
statements, Loan Documents and other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into the Assignment and
Acceptance and to become a Lender hereunder; (iv) such Assignee will, independently and
without reliance upon Agent, the assigning Lender or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such Assignee
appoints and authorizes the Agent to take such action as the Agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are delegated to
Agent by the terms hereof and thereof, together with such powers as are reasonably
incidental thereto; and (vi) such Assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
c. Agent shall maintain a copy of each Assignment and Acceptance delivered to and
accepted by it and shall record in its records the names and address of each Lender and the
Commitment of, and Percentage of the Revolving Facility owing to, such Lender from time to
time. Borrower, the Agent and Lenders may treat each entity whose name is so recorded as a
Lender hereunder for all purposes of this Agreement.
d. Upon receipt of an Assignment and Acceptance executed by an assigning Lender and an
Assignee, Agent shall, if such Assignment and Acceptance has been properly completed and
consented to if required herein, accept such Assignment and Acceptance, and record the
information contained therein in its records, and the Agent shall use its best efforts to
give prompt notice thereof to Borrower (provided that neither the Agent nor the Lenders
shall be liable for any failure to give such notice).
e. Borrower shall use reasonable efforts to cooperate with Agent and each Lender in
connection with the assignment of interests under this Agreement or the sale of
participations herein.
f. Anything in this Agreement to the contrary notwithstanding, and without the need to
comply with any of the formal or procedural requirements of this Agreement, including this
Section, any Lender may at any time and from time to time pledge and assign all or any
portion of its rights under all or any of the Loan Documents to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from its obligations
hereunder. To facilitate any such pledge or assignment, the Agent shall, at the request of
such Lender, enter into a letter agreement with the Federal Reserve
49
Bank in, or substantially in, the form of the exhibit to Appendix C to the Federal Reserve Bank of New
York Operating Circular No. 12.
g. Anything in this Agreement to the contrary notwithstanding, any Lender may assign
all or any portion of its rights and obligations under this Agreement to another branch or
affiliate of such Lender without first obtaining the approval of any Agent or the Borrower,
provided that (i) such Lender remains liable hereunder unless the Borrower and Agent shall
otherwise agree, (ii) at the time of such assignment such Lender is not a Defaulting Lender,
(iii) such Lender gives the Agent and Borrower at
least fifteen (15) days prior written notice of any such assignment, and (iv) the
parties to each such assignment execute and deliver to Agent an Assignment and Acceptance.
h. Each Lender shall have the right, without the consent of the Borrower, to sell
participations to one or more other Lenders (a “Participant”) in or to all or a
portion of its rights and obligations under the Revolving Facility and the Loan Documents;
provided, however, that (i) such Lender’s obligations under this Agreement (including
without limitation its Commitment to Borrower hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations (iii) the Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement and with regard to any and all payments to be made under this Agreement
and (iv) the holder of any such participation shall not be entitled to voting rights under
this Agreement or the other Loan Documents (but such holder may contract with the Lender
selling such Participant its interest in such Lender’s share of the Revolving Facility as to
voting of such Lender’s interest under Section 11.06(b) [but not under any other
section of this Agreement], provided that any such agreement by a Lender shall bind only
such Lender alone and not Borrower, the other Lenders or the Agent).
i. No Assignee of any rights and obligations under this Agreement shall be permitted to
subassign such rights and obligations. No participant in any rights and obligations under
this Agreement shall be permitted to sell subparticipations of such rights and obligations.
j. Borrower acknowledges and agrees that Lenders may provide to any Assignee or
Participant originals or copies of this Agreement, any other Loan Document and any other
documents, instruments, certificates, opinions, insurance policies, letters of credit,
reports, requisitions and other materials and information of every nature or description,
and may communicate all oral information, at any time submitted by or on behalf of Borrower
or received by any Lender in connection with the Revolving Facility or with respect to
Borrower, provided that prior to any such delivery or communication, such Assignees or
Participants shall agree to preserve the confidentiality of any of the foregoing to the same
extent that such Lender agreed to preserve such confidentiality. In order to facilitate
assignments to Assignees and sales to Participants, Borrower shall execute such further
documents, instruments or agreements as Lenders may reasonably require; provided, that
Borrower shall not be required (i) to execute any document or agreement which would
materially decrease its rights, or materially increase its
50
obligations, relative to those
set forth in this Agreement or any of the other Loan Documents unless the Loan Documents are
amended concurrently therewith (including financial obligations, personal recourse,
representations and warranties and reporting requirements), or (ii) to expend more than
incidental sums of money or incidental administrative time for which it does not receive
reasonable reimbursement in order to comply with any requests or requirements of any Lender
in connection with such assignment or sale arrangement. In addition, Borrower agrees to
cooperate fully with Lenders in the exercise of the Lenders’ rights pursuant to this
Section, including providing such information and documentation regarding Borrower as any
Lender or any
potential Assignee or Participant may reasonably request and to meet with potential
Assignees and Participants.
ARTICLE XI
AGENT
AGENT
11.01. Appointment. The Huntington National Bank is hereby appointed as Agent hereunder
and under each other Loan Document, and, subject to the terms hereof, each Lender hereby
irrevocably authorizes the Agent to act as agent for the Lenders and to take such actions as the
Lenders are obligated or entitled to take under the provisions of this Agreement and the other Loan
Documents and to exercise such powers as are set forth herein or therein, together with such other
powers as are reasonably incidental thereto. Agent agrees to act as such upon the express
conditions contained in this Article in substantially the same manner that it would act in dealing
with a loan held for its own account. Agent shall not have a fiduciary relationship with respect
to any Lender by reason of this Agreement.
The provisions of this Article are solely for the benefit of the Agent and the Lenders, and
Borrower shall not have any rights to rely on or enforce any of the provisions hereof except as
provided in Section 11.02 below. In performing its functions and duties under this
Agreement, the Agent shall act solely as agent for the Lenders and does not assume, and shall not
be deemed to have assumed, any obligations toward or relationship of agency or trust with or for
the Borrower.
11.02. Reliance on Agent. All acts of and communications by the Agent, as agent for the
Lenders, shall be deemed legally conclusive and binding; and Borrower or any third party (including
any court) shall rely on any and all communications or acts of the Agent with respect to the
exercise of any rights or the granting of any consent, waiver or approval on behalf of a Lender in
all circumstances where an action by such Lender is required or permitted pursuant to this
Agreement or the provisions of any other Loan Document or by applicable law without the right or
necessity of making any inquiry of any individual Lender as to the authority of Agent with respect
to such matter. In no event shall any of the foregoing limit the rights or obligations of any
Lender with respect to any other Lender pursuant to this Article XI.
11.03. Powers. The Agent shall have and may exercise such powers under the Loan Documents
as are specifically delegated to the Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto, and may exercise all other powers of Lender as are not made
subject to the consent of the Required Lenders pursuant to Section 11.06(a) or any other
provision of this Agreement or to the consent of all Lenders pursuant to Section 11.06(b)
or
51
any other provision of this Agreement. The Agent shall not be considered, or be deemed, a
separate agent of any Lender hereunder, but is, and shall be deemed, acting in its contractual
capacity as Agent, exercising such rights and powers under the Loan Documents as are specifically
delegated to the Agent or Agent is otherwise entitled to take hereunder. Agent shall have no
implied duties to any Lender, or any obligation to any Lender to take any action except any action
specifically provided by the Loan Documents to be taken by the Agent.
11.04. Disbursements.
a. At least one (1) Business Day (by 11:00 a.m. Columbus, Ohio time) prior to each date
a disbursement of the Revolving Facility is to be made hereunder pursuant to this Agreement
(or at least three (3) LIBOR Business Days [by 11:00 a.m. Columbus, Ohio time] for any
disbursements to be made at the Adjusted LIBOR Rate), the Agent shall notify each Lender of
the proposed disbursement. Each Lender shall make available to Agent (or the funding Lender
or entity designated by the Agent), the amount of such Lender’s Percentage of such
disbursement (with respect to such Lender, such amount being referred to herein as an
“Advance”) in immediately available funds not later than 11:00 a.m. (Columbus, Ohio
time) on the date such disbursement is to be made (such date being referred to herein as a
“Funding Date”). Unless the Agent shall have been notified by any Lender prior to
such time for funding in respect of any Advance that such Lender does not intend to make
available to the Agent such Lender’s Advance, the Agent may assume that such Lender has made
such amount available to the Agent and the Agent, in its sole discretion, may, but shall not
be obligated to, make available to Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Agent by such Lender on or prior to the
respective Funding Date, such Lender agrees to pay and Borrower agrees to repay to Agent
forthwith on demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to Borrower until the date such amount is paid
or repaid to Agent, at (A) in the case of such Lender, the Federal Funds Effective Rate, and
(B) in the case of Borrower, the interest rate applicable at the time to a disbursement made
on such Funding Date. If such Lender shall pay to Agent such corresponding amount, such
amount so paid shall constitute such Lender’s Advance, and if both such Lender and Borrower
shall have paid and repaid, respectively, such corresponding amount, Agent shall promptly
return to Borrower such corresponding amount in same day funds.
b. Requests by the Agent for funding by the Lenders of disbursements of the Revolving
Facility will be made by facsimile. Each Lender shall make its Advance available to the
Agent in dollars and in immediately available funds to such Lender and account as the Agent
may designate, not later than 11:00 a.m. (Columbus, Ohio time) on the Funding Date. Nothing
in this Section 11.04 shall be deemed to relieve any Lender of its obligation
hereunder to make any Advance on any Funding Date, nor shall any Lender be responsible for
the failure of any other Lender to perform its obligations to make any Advance hereunder,
and the Commitment of any Lender shall not be increased or decreased as a result of the
failure by any other Lender to perform its obligation to make any Advances hereunder.
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c. As soon as practical Agent will promptly forward to each Lender copies of the
Disbursement Request documents described in Section 5.01 hereof. Delivery of the
Disbursement Request documents shall not be a condition to funding any Advance.
11.05. Distribution and Apportionment of Payments.
a. Subject to Section 11.05(b), payments actually received by Agent for the
account of the Lenders shall be paid to them promptly after receipt thereof by Agent, but in
any event within one (1) Business Day, provided that, if any such payments are not
distributed to the Lenders within one Business Day after Agent’s receipt thereof, Agent
shall pay to such Lenders interest thereon, at the lesser of (i) the Federal Funds Effective
Rate and (ii) if the applicable payment represents repayment of a portion of the principal
of the Revolving Facility, the rate of interest applicable to such portion of the Revolving
Facility, from the date of receipt of such funds by Agent until such funds are paid in
immediately available funds to such Lenders provided such funds are received by Agent not
later than 11:00 A.M. (Columbus, Ohio time) on the date of receipt. All payments of
principal and interest in respect of the Revolving Facility, all payments of the fees
described in this Agreement (but not in any separate fee letter except to the extent
expressly set forth therein), and all payments in respect of any other obligations of
Borrower under the Loan Documents shall be allocated among such of Lenders as are entitled
thereto, in proportion of their respective Percentages or otherwise as provided herein in
the other Loan Documents, as the case may be. The Agent shall distribute to each Lender at
its primary address set forth herein or in its Assignment and Acceptance, or at such other
address as a Lender may request in writing, such funds as it may be entitled to receive,
provided that the Agent shall in any event not be bound to inquire into or determine the
validity, scope or priority of any interest or entitlement of any Lender and may suspend all
payments and seek appropriate relief (including without limitation instructions from the
Required Lenders, or all Lenders, as applicable, or an action in the nature of interpleader)
in the event of any doubt or dispute as to any apportionment or distribution contemplated
hereby. The order of priority herein is set forth solely to determine the rights and
priorities of the Lenders as among themselves and may at any time or from time to time be
changed by the Lenders as they may elect, in writing, without necessity of notice to or
consent of or approval by Borrower. If a Lender (a “Defaulting Lender”) defaults in
making any Advance or paying any other sum payable by it hereunder, such sum together with
interest thereon at the Default Rate from the date such amount was due until repaid (such
sum and interest thereon as aforesaid referred to, collectively, as the “Lender Default
Obligation”) shall be payable by the Defaulting Lender (i) to any Lender(s) which elect,
at their sole option (and with no obligation to do so), to fund the amount which the
Defaulting Lender failed to fund or (ii) to Agent or any other Lender which under the terms
of this Agreement is entitled to reimbursement from the Defaulting Lender for the amounts
advanced or expended. Notwithstanding any provision hereof to the contrary, until such time
as a Defaulting Lender has repaid the Lender Default Obligation in full, all amounts which
would otherwise be distributed to the Defaulting Lender shall instead be applied first to
repay the Lender Default Obligation (to be applied first to interest at the Default Rate and
then to principal) until the Lender Default Obligation has been repaid in full (whether by
such application or by cure by the Defaulting Lender), whereupon such Lender shall no longer
be a Defaulting
53
Lender. Any interest collected from Borrower on account of principal
advanced by any Lender(s) on behalf of a Defaulting Lender shall be paid to the Lender (s)
who made such advance and shall be credited against the Defaulting Lender’s obligation to
pay interest on the amount advanced at the Default Rate. If no other Lender makes an
advance a Defaulting Lender failed to fund, a portion of the indebtedness of Borrower to the
Defaulting Lender equal to the Lender Default Obligation shall be subordinated to the
indebtedness of Borrower to all other Lenders and shall be paid only after the indebtedness
of Borrower to all other Lenders is paid. The provisions of this Section shall apply and be
effective regardless of whether an Event of Default occurs and is then continuing, and
notwithstanding (i) any other provision of this Agreement to the contrary or (ii) any
instruction of Borrower as to its desired application of payments. No Defaulting Lender
shall have the right to vote on matters which are subject to the consent or approval of
Required Lenders or all Lenders and while any Lender is a Defaulting Lender the requisite
percentage of Lenders which constitutes the Required Lenders shall be calculated exclusive
of the Percentage of the Defaulting Lender. The Agent shall be entitled to (i) withhold or
set off, and to apply to the payment of the Lender Default Obligation any amounts to be paid
to such Defaulting Lender under this Agreement, and (ii) bring an action or suit against
such Defaulting Lender in a court of competent jurisdiction to recover the Lender Default
Obligation and, to the extent such recovery would not fully compensate the Lenders for the
Defaulting Lender’s breach of this Agreement, to collect damages. In addition, the
Defaulting Lender shall indemnify, defend and hold Agent and each of the other Lenders
harmless from and against any and all claims, actions, liabilities, damages, costs and
expenses (including attorneys’ fees and expenses), plus interest thereon at the Default
Rate, for funds advanced by Agent or any other Lender on account of the Defaulting Lender or
any other damages such persons may sustain or incur by reason of or as a direct consequence
of the Defaulting Lender’s failure or refusal to abide by its obligations under this
Agreement.
b. At least five Business Days prior to the first date on which interest or fees are
payable hereunder for the account of any Lender, each Lender that is not incorporated under
the laws of the United States of America, or a state thereof, agrees that it will deliver to
the Agent two duly completed copies of United States Internal Revenue Service Form 1001 or
4224, certifying in either case that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States federal income
taxes. Each Lender which so delivers a Form 1001 or 4224 further undertakes to deliver the
Agent two additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent forms so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by the Agent, in each case
certifying that such Lender is entitled to receive payments under this Agreement and the
Note without deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation) has occurred
prior to the date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender advises the Agent that it is not
capable of receiving payments without any deduction or withholding of United States federal
income tax.
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11.06. Consents and Approvals.
a. Each of the following shall require the approval or consent of the Required Lenders:
i. Declaring the Notes to be immediately due and payable following an
Event of Default or any rescission of any such acceleration;
ii. Approval of the exercise of rights and remedies under the Loan
Documents following an Event of Default;
iii. Appointment of a successor Agent or removal of Agent;
iv. Approval of Post-Default Plan (defined in Section
11.07(d));
v. Approval of a new Mortgaged Property which is not a Restricted
Asset; and
vi. Except as referred to in subsection (b) below, approval of
any amendment or modification of this Agreement or any of the other Loan
Documents, or issuance of any waiver of any material provision of this
Agreement (including any Conditional Default or Event of Default) or any of
the other Loan Documents;
b. Each of the following shall require the approval or consent of all the Lenders:
i. Extension of the maturity date of the Revolving Facility (beyond any
extension permitted herein) or forgiveness of all or any portion of the
principal amount of Revolving Facility or any accrued interest thereon, or
any other amendment of this Agreement or the other Loan Documents which
would reduce the interest rate options or the rate at which fees are
calculated or forgive any loan fee, or extend the time of payment of any
principal, interest or fees;
ii. Reduction of the percentage specified in the definition of Required
Lenders;
iii. Increasing of the amount of the Revolving Facility or any Lender’s
Commitment;
iv. Release of Borrower, Guarantor or any lien on any material
collateral (including the Mortgaged Properties) (except as Borrower is
entitled to under the Loan Documents);
v. Approval of a Restricted Asset as a Mortgaged Property; and
55
vi. Amendment of the provisions of this Article XI.
c. In addition to the required consents or approvals referred to in subsections
(a) and (b) above, the Agent may at any time request instructions from the
Required
Lenders with respect to any actions or approvals which, by the terms of this Agreement
or of any of the Loan Documents, the Agent is permitted or required to take or to grant
without instructions from any Lenders, and if such instructions are promptly requested, the
Agent shall be absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever for refraining from taking any
action or withholding any approval under any of the Loan Documents until it shall have
received such instructions from the Required Lenders. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against any Agent as a result of such Agent
acting or refraining from acting under this Agreement or any of the other Loan Documents in
accordance with the instructions of the Required Lenders or, where applicable, all Lenders.
The Agent shall promptly notify each Lender at any time that the Required Lenders have
instructed the Agent to act or refrain from acting pursuant hereto. Each Lender hereby
agrees to approve or disapprove a request by Borrower to add new Mortgaged Properties within
ten (10) Business Days after receipt of the information set forth in Exhibit K
hereto.
d. Each Lender authorizes and directs the Agent to enter into the Loan Documents other
than this Agreement for the benefit of the Lenders. Each Lender agrees that any action
taken by the Agent at the direction or with the consent of the Required Lenders in
accordance with the provisions of this Agreement or any other Loan Document, and the
exercise by the Agent at the direction or with the consent of the Required Lenders of the
powers set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all Lenders, except for actions
specifically requiring the approval of all Lenders. All communications from the Agent to
the Lenders requesting Lender’s determination, consent, approval or disapproval (i) shall be
given in the form of a written notice to each Lender, (ii) shall be accompanied by a
description of the matter or item as to which such determination, approval, consent or
disapproval is requested, or shall advise each Lender where such matter or item may be
inspected, or shall otherwise describe the matter or issue to be resolved, (iii) shall
include, if reasonably requested by a Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to the Agent
by Borrower in respect of the matter or issue to be resolved, and (iv) shall include the
Agent’s recommended course of action or determination in respect thereof. Each Lender shall
reply promptly, but in any event within ten (10) Business Days after receipt of the request
therefor from the Agent (the “Lender Reply Period”). Unless a Lender shall give
written notice to the Agent that it objects to the recommendation or determination of the
Agent (together with a written explanation of the reasons behind such objection) within the
Lender Reply Period, such Lender shall be deemed to have approved of or consented to such
recommendation or determination. With respect to decisions requiring the approval of the
Required Lenders or all Lenders, the Agent shall upon receiving the required approval or
consent follow the course of action or determination recommended to the Lenders by the Agent
or such other course of action recommended by the Required Lenders.
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11.07. Consents and Approvals. The Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice
to or further consent from any Lender, at any time and from time to time, to take any action with
respect to any collateral for the Revolving Facility or any Loan Document which may be necessary to
preserve and maintain such collateral or to perfect and maintain perfected the liens upon such
collateral granted pursuant to this Agreement and the other Loan Documents.
a. Except as provided in this Agreement, the Agent shall have no obligation whatsoever
to any Lender or to any other person or entity to assure that any collateral exists or is
owned by Borrower or is cared for, protected or insured or has been encumbered or that the
liens granted herein or in any of the other Loan Documents or pursuant hereto or thereto
have been properly or sufficiently or lawfully created, perfected, protected or enforced or
are entitled to any particular priority.
b. Should the Agent commence any proceeding or in any way seek to enforce the Agent’s
or the Lenders’ rights or remedies under the Loan Documents, irrespective of whether as a
result thereof the Agent shall acquire title to any collateral, each Lender, upon demand
therefor from time to time, shall contribute its share (based on its Percentage) of the
reasonable costs and/or expenses of any such enforcement or acquisition, including, but not
limited to, fees of receivers or trustees, court costs, title company charges, filing and
recording fees, appraisers’ fees and fees and expenses of attorneys to the extent not
otherwise reimbursed by Borrower. Without limiting the generality of the foregoing, each
Lender shall contribute its share (based on its Percentage) of all reasonable costs and
expenses incurred by the Agent (including reasonable attorneys’ fees and expenses) if the
Agent employ counsel for advice or other representation (whether or not any suit has been or
shall be filed) with respect to any collateral for the Revolving Facility or any part
thereof, or any of the Loan Documents, or the attempt to enforce any security interest or
lien on any collateral, or to enforce any rights of the Agent or the Lenders or any of
Borrower’s or any other party’s obligations under any of the Loan Documents, but not with
respect to any dispute between any Agent and any other Lender(s). It is understood and
agreed that in the event the Agent determines it is necessary to engage counsel for Lender
from and after the occurrence of a Default or Event of Default, said counsel shall be
selected by the Agent and written notice of such selection, together with a copy of such
counsel’s engagement letter and fee estimate, shall be delivered to the Lenders.
c. In the event that all or any portion of the collateral for the Revolving Facility is
acquired by the Agent as the result of the exercise of any remedies hereunder or under any
other Loan Document, or is retained in satisfaction of all or any part of Borrower’s
obligations under the Loan Documents, title to any such collateral or any portion thereof
shall be held in the name of the Agent or a nominee or subsidiary of Agent, as agent, for
the ratable benefit of the Agent and the Lenders. The Agent shall prepare a recommended
course of action for such collateral (the “Post-Default Plan”), which shall be
subject to the approval of the Required Lenders. The Agent shall administer the collateral
in accordance with the Post-Default Plan, and upon demand therefor from time to time, each
Lender will contribute its share (based on its Percentage) of all reasonable costs and
expenses incurred by the Agent pursuant to the Post-Default
57
Plan, including without
limitation, any operating losses and all necessary operating
reserves. To the extent there is net operating income from such collateral, the Agent
shall, in accordance with the Post-Default Plan, determine the amount and timing of
distributions to the Lenders. All such distributions shall be made to the Lenders in
accordance with their respective Percentages. In no event shall the provisions of this
subsection or the Post-Default Plan require the Agent or any Lender to take an action which
would cause such Lender to be in violation of any applicable regulatory requirements.
11.08. Lender Actions Against Borrower or the Collateral. Each Lender agrees that it will
not take any action, nor institute any actions or proceedings, against Borrower or any other Person
hereunder or under any other Loan Documents with respect to exercising claims against the Borrower
or rights in any Collateral without the consent of the Required Lenders. With respect to any
action by the Agent to enforce the rights and remedies of the Agent and the Lenders with respect to
the Borrower and any collateral in accordance with the terms of this Agreement, each Bank hereby
consents to the jurisdiction of the court in which such action is maintained.
11.09. Assignment and Participation. No Lender shall be permitted to assign or sell all or
any portion of its rights and obligations under this Agreement to Borrower or any Affiliate of
Borrower.
11.10. Ratable Sharing. Subject to Sections 11.04 and 11.05, Lenders agree
among themselves that (i) with respect to all amounts received by them which are applicable to the
payment of the Revolving Facility, equitable adjustment will be made so that, in effect, all such
amounts will be shared among them ratably in accordance with their Percentages, whether received by
voluntary payment, by the exercise of the right of set-off or bankers’ lien, by counterclaim or
cross action or by the enforcement of any or all of the Loan Documents or any collateral and (ii)
if any of them shall by voluntary payment or by the exercise of any right of counterclaim, set-off,
bankers’ lien or otherwise, receive payment of a proportion of the aggregate amount of the
Revolving Facility held by it which is greater than its Percentage of the payments on account of
the Revolving Facility, the one receiving such excess payment shall purchase, without recourse or
warranty, an undivided interest and participation (which it shall be deemed to have done
simultaneously upon the receipt of such payment) in such obligations owed to the others so that all
such recoveries with respect to such obligations shall be applied ratably in accordance with their
Percentages; provided, that if all or part of such excess payment received by the purchasing party
is thereafter recovered from it, those purchases shall be rescinded and the purchase prices paid
for such participations shall be returned to that party to the extent necessary to adjust for such
recovery, but without interest except to the extent the purchasing party is required to pay
interest in connection with such recovery. Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of Borrower in the amount of such
participation.
11.11. General Immunity. Neither Agent nor any of its directors, officers, agents or
employees shall be liable to any Lender for any action taken or omitted to be taken by it or them
58
hereunder or under any other Loan Document or in connection herewith or therewith, except for its
or their own gross negligence or willful misconduct.
11.12. No Responsibility for Revolving Facility, Recitals, etc. Neither Agent nor any of
its directors, officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (i) any statement, warranty or representation made in connection
with any Loan Document or any use of the Revolving Facility; (ii) the performance or observance of
any of the covenants or agreements of any party to any Loan Document; (iii) the satisfaction of any
condition specified in this Agreement, except receipt of items purporting to be the items required
to be delivered to any Agent; or (iv) the validity, effectiveness or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith, provided that the
foregoing shall not release Agent from liability for its gross negligence or willful misconduct.
11.13. Action on Instructions of Lenders. The Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder and under any other Loan Document in accordance
with written instructions signed by all the Lenders (or the Required Lenders, if such action may be
directed hereunder by the Required Lenders), and such instructions and any action taken or failure
to act pursuant thereto shall be binding on all of Lenders. Each Lender, severally to the extent
of its Percentage, hereby agrees to indemnify Agent against and hold it harmless from any and all
liability, cost and expense that it may incur by reason of taking or continuing to take any such
action, provided that the foregoing shall not require any Lender to indemnify Agent from liability
for its gross negligence or willful misconduct.
11.14. Employment of Agents and Counsel. The Agent may undertake any of its duties as
Agent hereunder and under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be liable to Lenders, except as to money or securities received by
them or their authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its duties hereunder and
under any other Loan Document.
11.15. Reliance on Documents; Counsel. The Agent shall be entitled to rely upon any
notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by
it to be genuine and correct and to have been signed or sent by the proper person or persons, and,
in respect to legal matters, upon the opinion of counsel selected by the Agent, which counsel may
be an employee of Agent, provided that the foregoing shall not release the Agent from liability for
its gross negligence or willful misconduct. Any such counsel shall be deemed to be acting on
behalf of Lender in assisting the Agent with
respect to the Revolving Facility, but shall not be precluded from also representing Agent in any
matter in which the interests of Agent and the other Lenders may differ.
11.16. Agent’s Reimbursement and Indemnification. Lenders agree to reimburse and indemnify
Agent ratably (i) for any amounts (excluding principal and interest on the Revolving Facility and
loan fees) not reimbursed by Borrower for which Agent is entitled to reimbursement under the Loan
Documents, (ii) for any other expenses incurred by Agent on behalf of Lender, in connection with
the preparation, execution, delivery, administration and enforcement of the Loan Documents, if not
paid by Borrower, (iii) for any expenses incurred by Agent on behalf of
59
Lender which may be necessary or desirable to preserve and maintain collateral or to perfect and maintain perfected the
liens upon the collateral granted pursuant to this Agreement and the other Loan Documents, if not
paid by Borrower, (iv) for any amounts and other expenses incurred by Agent on behalf of Lender in
connection with any default by any Lender hereunder or under the other Loan Documents, if not paid
by such Lender, and (v) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the transactions contemplated
thereby, or the enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of Agent.
11.17. Rights as a Lender. With respect to its Commitment, if any, Agent shall have the
same rights, powers and obligations hereunder and under any other Loan Document as any Lender and
may exercise such rights and powers as though it were not an Agent, and the term “Lender” or “
Lenders” shall, unless the context otherwise indicates, include Agent in its individual capacities.
The Borrower and each Lender acknowledges and agrees that Agent and/or its Affiliates may accept
deposits from, lend money to, hold other investments in, and generally engage in any kind of trust,
debt, equity or other transaction or have other relationships, in addition to those contemplated by
this Agreement or any other Loan Document, with Borrower or any of its Affiliates in which Borrower
or such Affiliate is not restricted hereby from engaging with any other Person.
11.18. Lender’s Credit Decisions. Each Lender acknowledges that it has, independently and
without reliance upon the Agent or any other Lender and based on the financial statements and other
information prepared by Borrower and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement and the other
Loan Documents. Each Lender also acknowledges that it will, independently and without reliance
upon Agent or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Loan Documents.
11.19. Notice of Events of Default. Should Agent receive any written notice of the occurrence of a default or Event of Default, or
should the Agent send Borrower a notice of Default or Event of Default, the Agent shall promptly
furnish a copy thereof to each Lender.
11.20. Successor Agent.
a. Agent may resign from the performance of all its functions and duties hereunder at
any time by giving at least thirty (30) days prior written notice to Lenders and Borrower.
Such resignation shall take effect on the date set forth in such notice or as otherwise
provided below. Such resignation by Agent as agent shall not affect its obligations
hereunder, if any, as a Lender.
b. Upon resignation by, or removal of, the Agent, or any successor Agent, the Required
Lenders shall appoint a successor Agent with the consent of Borrower, which shall not be
unreasonably withheld, conditioned or delayed (provided that no
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consent of Borrower shall be
required if the successor Agent is also a Lender or if an Event of Default then exists). If
no successor Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment within thirty (30) days after the retiring Agent’s giving notice
of resignation, then the retiring Agent may appoint a successor Agent with the consent of
Borrower, which shall not be unreasonably withheld, conditioned or delayed (provided that no
consent of Borrower shall be required if the successor Agent is also a Lender or if an Event
of Default then exists). Upon the acceptance of any appointment as an Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the Agent and the Agent, and the retiring Agent
shall be discharged from its duties and obligations hereunder and under the other Loan
Documents other than its liability, if any, for duties and obligations accrued prior to its
retirement. After any retiring Agent’s resignation hereunder as an Agent, the provisions of
this Article XI shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as an Agent hereunder and under the
other Loan Documents.
11.21. Additional Duties of Agent. a. The Agent shall keep proper accounts and
records reflecting the interests of each Lender in the Revolving Facility and the Loan Documents;
such accounts and records shall be maintained in accordance with the Standard of Care (as
hereinafter defined), and shall be available for inspection by any lender during regular business
hours upon reasonable prior notice fro such Lender. As used herein, the term “Standard of Care”
shall mean the same standard of diligence, care and judgment as Agent uses with loans comparable to
the Revolving Facility which Agent makes, holds and administers for its own account.
b. Agent shall furnish to each Lender, promptly after Agent’s receipt thereof, true and
complete copies of all financial reports, statements and accounts submitted by Borrower or
by other on Borrower’s behalf in accordance with the Loan Documents or otherwise with
respect to the Revolving Facility.
d. Agent shall provide each Lender with (i) true and complete copies of all notices and
other written communications which Agent shall receive from Borrower or Guarantor with
respect to the Revolving Facility promptly after Agent’s receipt of the same; and (ii) true
and correct copies of any and all notices which Agent may furnish to Borrower or Guarantor
with respect to the Revolving Facility, promptly after sending the same to Borrower or
Guarantor.
ARTICLE XII
AMENDMENT AND RESTATEMENT
AMENDMENT AND RESTATEMENT
12.01.
Amendment and Restatement. This Third Amended and Restated Secured
Revolving Credit Agreement completely amends and restates in its entirety that certain Second
Amended and Restated Secured Revolving Credit Agreement executed by Borrower and Agent, dated
September 30, 2005.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the
day and year first above written.
[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
62
SIGNATURE PAGE OF WINDROSE MEDICAL PROPERTIES, L.P. TO
THIRD AMENDED AND RESTATED SECURED REVOLVING CREDIT
AGREEMENT
THIRD AMENDED AND RESTATED SECURED REVOLVING CREDIT
AGREEMENT
“BORROWER” | ||||||||
WINDROSE MEDICAL PROPERTIES, L.P., a Virginia limited partnership |
||||||||
By: | Windrose Medical Properties Trust, a Maryland real estate investment trust, its general partner |
|||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||||
STATE OF INDIANA
|
) | |
) SS: | ||
COUNTY
OF XXXXXX
|
) |
Before me, a Notary Public in and for said County and State, personally appeared Xxxxxx X.
Xxxxxx, known to me to be the Executive Vice President of Windrose Medical Properties Trust, a
Maryland real estate investment trust, the General Partner of WINDROSE MEDICAL PROPERTIES, L.P., a
Virginia limited partnership, and acknowledged the execution of the foregoing for and on behalf of
said real estate investment trust for and on behalf of said limited partnership.
Witness
my hand and Notarial Seal, this 15th day of September, 2006.
/s/ Xxx X. Xxxxx | ||||
Xxx X. Xxxxx | ||||
My Commission Expires:
|
My County of Residence: | |||
2/24/2013 |
Xxxxxx | |||
SIGNATURE PAGE OF THE HUNTINGTON NATIONAL BANK TO THIRD
AMENDED AND RESTATED SECURED REVOLVING CREDIT AGREEMENT
AMENDED AND RESTATED SECURED REVOLVING CREDIT AGREEMENT
“LENDER” | ||||||
THE HUNTINGTON NATIONAL BANK, a national banking association, individually and as agent for the Lenders |
||||||
By: | /s/ Xxxxxxx X. Xxxx | |||||
Commitment: |
Revolving Facility | $ | 50,000,000 | |||||
LOC Facility | $ | 3,000,000 |
Percentage Interest: 100%
STATE OF INDIANA
|
) | |
) SS: | ||
COUNTY OF
|
) |
Before me, a Notary Public in and for said County and State, personally appeared Xxxxxxx X.
Xxxx, known to me to be a Vice President of THE HUNTINGTON NATIONAL BANK, a national banking
association, and acknowledged the execution of the foregoing for and on behalf of said national
banking association.
Witness my hand and Notarial Seal, this ___day of September, 2006.
My Commission Expires:
|
||||