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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20546
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 11, 1997
(June 16, 1997)
LIBERTY PROPERTY TRUST
LIBERTY PROPERTY LIMITED PARTNERSHIP
------------------------------------
(Exact name of registrant as specified in its charter)
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MARYLAND 1-13130 23-7768996
PENNSYLVANIA 1-13132 23-2766549
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
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65 VALLEY STREAM PARKWAY, SUITE 100
MALVERN, PENNSYLVANIA 19355
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (610) 648-1700
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ITEM 5: OTHER EVENTS
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On May 20, 1997, Liberty Property Trust (the "Trust") closed a $325 million
unsecured credit facility arranged by BankBoston, N.A. (the "Credit Facility").
The agreement pursuant to which the Credit Facility was entered into, which was
amended and restated as of June 16, 1997, is filed as Exhibit 10 to this Report.
On August 7, 1997, the Trust filed with the Maryland Department of Assessments
and Taxation the Trust's Articles Supplementary to the Amended and Restated
Declaration of Trust Establishing and Fixing the Rights and Preferences of a
Series of Preferred Shares of Beneficial Interest (the "Articles
Supplementary"). The Articles Supplementary are filed as Exhibit 4 to this
Report.
ITEM 7: FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
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(a) Financial Statements of Businesses Acquired.
None.
(b) Pro Forma Financial Information.
None.
(c) Exhibits.
4 Articles Supplementary to the Amended and Restated Declaration of Trust
of the Trust Establishing and Fixing the Rights and Preferences of a
Series of Preferred Shares of Beneficial Interest (Incorporated by
reference to Exhibit (1) filed with the Registration Statement on Form 8-
A of the Trust, filed with the Commission on August 8, 1997.
10 Amended and Restated Loan Agreement, dated as of June 16, 1997, by and
among Liberty Property Limited Partnership, Liberty Property Trust, the
Banks named therein and Bank Boston, N.A., as agent for itself and the
other lending institutions.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, each
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
LIBERTY PROPERTY TRUST
Dated: August 10, 1997 BY: /s/ GEORGE J. ALBURGER, JR.
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NAME: George J. Alburger, Jr.
TITLE: Chief Financial Officer
LIBERTY PROPERTY LIMITED PARTNERSHIP
BY: LIBERTY PROPERTY TRUST, AS ITS
SOLE GENERAL PARTNER
Dated: August 10, 1997 BY: /s/ GEORGE J. ALBURGER, JR.
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NAME: George J. Alburger, Jr.
TITLE: Chief Financial Officer
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EXHIBIT INDEX
4. Articles Supplementary to the Amended and Restated Declaration of Trust of
the Trust Establishing and Fixing the Rights and Preferences of a Series of
Preferred Shares of Beneficial Interest (Incorporated by reference to
Exhibit (1) filed with the Registration Statement on Form 8-A of the Trust,
filed with the Commission on August 8, 1997.
10. Amended and Restated Loan Agreement, dated as of June 16, 1997, by and
among Liberty Property Limited Partnership, Liberty Property Trust, the
Banks named therein and BankBoston, N.A., as agent for itself and the other
lending institutions.
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TABLE OF CONTENTS
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(S)1. DEFINITIONS OF RULES OF INTERPRETATION................................ 2
(S)1.1. Definitions.................................................. 2
(S)1.2. Rules of Interpretation...................................... 18
(S)2. REVOLVING CREDIT FACILITY............................................. 18
(S)2.1. Commitment to Lend; Limitation on Total Commitment........... 18
(S)2.2. Reduction of Commitment...................................... 19
(S)2.3. The Notes.................................................... 20
(S)2.4. Interest on Loans............................................ 21
(S)2.5. Requests for Loans........................................... 21
(S)2.6. Conversion Options........................................... 22
(S)2.7. Funds for Loans.............................................. 23
(S)2.8. Reallocation of Loans on Effective Date...................... 23
(S)3. REPAYMENT OF THE LOANS................................................ 24
(S)3.1. Maturity; Term Extension Option.............................. 24
(S)3.2. Mandatory Repayments of Loan................................. 24
(S)3.3. Optional Repayments of Loans................................. 24
(S)4. CERTAIN GENERAL PROVISIONS............................................ 26
(S)4.1. Revolving Credit Facility Fees and Agent's Fee............... 26
(S)4.2. Commitment Fee............................................... 26
(S)4.3. Funds for Payments........................................... 26
(S)4.4. Computations................................................. 27
(S)4.5. Additional Costs, Etc........................................ 27
(S)4.6. Capital Adequacy............................................. 28
(S)4.7. Certificate.................................................. 29
(S)4.8. Indemnity.................................................... 29
(S)4.9. Interest on Overdue Amounts.................................. 29
(S)4.10. Inability to Determine Eurodollar Rate....................... 29
(S)4.11. Illegality................................................... 30
(S)4.12. Replacement of Banks......................................... 30
(S)5. UNENCUMBERED PROPERTIES; NO LIMITATION ON RECOURSE.................... 30
(S)5.1. Listing of Unencumbered Properties........................... 30
(S)5.2. Waivers by Requisite Banks................................... 30
(S)5.3. Rejection of Unencumbered Properties......................... 31
(S)5.4. Change in Circumstances...................................... 31
(S)5.5. No Limitation on Recourse.................................... 31
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(S)5.6. Additional Guarantor Subsidiaries............................ 31
(S)6. REPRESENTATIONS AND WARRANTIES........................................ 31
(S)6.1. Authority; Etc............................................... 31
(S)6.2. Governmental Approvals....................................... 33
(S)6.4. Financial Statements......................................... 33
(S)6.5. No Material Changes, Etc..................................... 34
(S)6.6. Franchises, Patents, Copyrights, Etc......................... 34
(S)6.7. Litigation................................................... 34
(S)6.8. No Materially Adverse Contracts, Etc......................... 34
(S)6.9. Compliance With Other Instruments, Laws, Etc................. 35
(S)6.10. Tax Status................................................... 35
(S)6.11. Event of Default............................................. 35
(S)6.12. Investment Company Act....................................... 35
(S)6.13. Absence of Financing Statements, Etc......................... 35
(S)6.14. Status of the Company........................................ 35
(S)6.15. Certain Transactions......................................... 35
(S)6.16. Benefit Plans: Multiemployer Plans:
Guaranteed Pension Plans.................................... 36
(S)6.17. Regulations U and X.......................................... 36
(S)6.18. Environmental Compliance..................................... 36
(S)6.19. Subsidiaries and Affiliates.................................. 38
(S)6.20. Loan Documents............................................... 38
(S)6.21. Buildings on the Unencumbered Properties..................... 38
(S)7. AFFIRMATIVE COVENANTS OF THE BORROWER................................. 38
(S)7.1. Punctual Payment............................................. 38
(S)7.2. Maintenance of Office........................................ 38
(S)7.3. Records and Accounts......................................... 38
(S)7.4. Financial Statements, Certificates and Information........... 38
(S)7.5. Notices...................................................... 40
(S)7.6. Existence; Maintenance of REIT Status;
Maintenance of Properties................................... 41
(S)7.7. Insurance.................................................... 42
(S)7.8. Taxes........................................................ 42
(S)7.9. Inspection of Properties and Books........................... 42
(S)7.10. Compliance with Laws, Contracts, Licenses, and Permits....... 42
(S)7.11. Use of Proceeds.............................................. 43
(S)7.12. Discharges of Liens on Unencumbered Properties............... 43
(S)7.13. Notices of Significant Transactions.......................... 43
(S)7.14. Further Assurance............................................ 44
(S)7.15. Environmental Indemnification................................ 44
(S)7.16. Response Actions............................................. 44
(S)7.17. Employee Benefit Plans....................................... 44
(S)7.18. Required Interest Rate Contracts............................. 45
(S)8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER............................ 45
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(S)8.1 Restrictions on Recourse Indebtedness....................... 45
(S)8.2. Restrictions on Investments................................. 47
(S)8.3. Merger, Consolidation and Other Fundamental Changes......... 47
(S)8.4. Sale and Leaseback.......................................... 48
(S)8.5. Compliance with Environmental Laws.......................... 48
(S)8.6. Distributions............................................... 48
(S)9. FINANCIAL COVENANTS OF THE BORROWER................................... 48
(S)9.1. Value of All Unencumbered Properties........................ 48
(S)9.2. Minimum Debt Service Coverage............................... 49
(S)9.3. Total Liabilities to Total Assets........................... 49
(S)9.4. Total Liabilities minus Subordinated Indebtedness to
Total Assets............................................... 49
(S)9.5. Maximum Secured Debt........................................ 49
(S)9.6. Minimum Tangible Net Worth.................................. 49
(S)9.7. Total Operating Cash Flow to Interest Expense............... 49
(S)9.8. Total Operating Cash Flow to Senior Interest Expense........ 49
(S)9.9. EBITDA to Fixed Charges..................................... 49
(S)9.10. Aggregate Occupancy Rate.................................... 49
(S)10. CONDITIONS TO EFFECTIVENESS........................................... 49
(S)10.1. Loan Documents.............................................. 50
(S)10.2. Certified Copies of Organization Documents; Good
Standing Certificates...................................... 50
(S)10.3. By-laws; Resolutions........................................ 50
(S)10.4. Incumbency Certificate; Authorized Signers.................. 50
(S)10.5. Opinions of Counsel Concerning Organization
and Loan Documents......................................... 50
(S)10.6. Payment of Fees............................................. 50
(S)11. CONDITIONS TO ALL BORROWINGS.......................................... 51
(S)11.1. Representations True; No Event of Default; Compliance
Certificate................................................ 51
(S)11.2. No Legal Impediment......................................... 51
(S)11.3. Governmental Regulation..................................... 51
(S)11.4. Proceedings and Documents................................... 51
(S)12. EVENTS OF DEFAULT; ACCELERATION; ETC.................................. 51
(S)12.1. Events of Default and Acceleration.......................... 51
(S)12.2. Termination of Commitments.................................. 54
(S)12.3. Remedies.................................................... 54
(S)12.4. Distribution of Enforcement Proceeds........................ 55
(S)13. SETOFF................................................................ 55
(S)14. THE AGENT............................................................. 56
(S)14.1. Authorization............................................... 56
(S)14.2. Employees and Agents........................................ 56
(S)14.3. No Liability................................................ 56
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(S)14.4. No Representations.......................................... 56
(S)14.5. Payments.................................................... 57
(S)14.6. Holders of Notes............................................ 58
(S)14.7. Indemnity................................................... 58
(S)14.8. Agent as Bank............................................... 58
(S)14.9. Resignation................................................. 58
(S)14.10. Notification of Defaults and Events of Default.............. 59
(S)14.11. Duties in the Case of Enforcement........................... 59
(S)15. EXPENSES.............................................................. 60
(S)16. INDEMNIFICATION....................................................... 60
(S)17. SURVIVAL OF COVENANTS, ETC............................................ 61
(S)18. ASSIGNMENT; PARTICIPATIONS; ETC....................................... 61
(S)18.1. Conditions to Assignment by Banks........................... 61
(S)18.2. Certain Representations and Warranties;
Limitations; Covenants..................................... 62
(S)18.3 Register.................................................... 63
(S)18.4. New Notes................................................... 63
(S)18.5. Participations.............................................. 64
(S)18.6. Pledge by Lender............................................ 64
(S)18.7. No Assignment by Borrower................................... 65
(S)18.8. Disclosure.................................................. 65
(S)19. NOTICES, ETC.......................................................... 65
(S)20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.................... 65
(S)21. HEADINGS.............................................................. 66
(S)22. COUNTERPARTS.......................................................... 66
(S)23. ENTIRE AGREEMENT...................................................... 66
(S)24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS........................ 66
(S)25. CONSENTS, AMENDMENTS, WAIVERS, ETC.................................... 67
(S)26. SEVERABILITY.......................................................... 67
(S)27. ACKNOWLEDGMENTS....................................................... 67
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Exhibit A Form of Note
Exhibit B Form of Loan Request
Exhibit C Form of Compliance Certificate
Exhibit D Opinion Requirements
Exhibit E Form of Assignment and Acceptance
Schedule 1 Banks; Domestic and Eurodollar Lending Offices
Schedule 1.1 Unencumbered Properties
Schedule 1.2 Commitments and Commitment Percentages
Schedule 1.3 Related Companies, Guarantor Subsidiaries and Permitted Joint
Ventures
Schedule 6.3 Title to Properties
Schedule 6.7 Litigation
Schedule 6.15 Insider Transactions
Schedule 6.18 Environmental Matters
Schedule 6.21 Building Structural Defects, etc.
Schedule 7.18 Interest Rate Contracts
Schedule 8.2(d) Investments
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AMENDED AND RESTATED LOAN AGREEMENT
This AMENDED AND RESTATED LOAN AGREEMENT is made as of the 16th day of
June, 1997, by and among LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania
limited partnership (the "Borrower"), LIBERTY PROPERTY TRUST, a Maryland trust
(the "Company") and BANKBOSTON, N.A., a national banking association
("BankBoston"), PNC BANK, NATIONAL ASSOCIATION, a national banking association
("PNC" or "Document Agent"), DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, a German bank ("Dresdner" or a "Co-Agent"), KEYBANK NATIONAL
ASSOCIATION, a national banking association ("KeyBank" or a "Co-Agent"),
CORESTATES BANK, N.A., a national banking association ("CoreStates"), CRESTAR
BANK, a Virginia banking corporation ("Crestar"), SUMMIT BANK, a New Jersey
banking corporation ("Summit"), COMERICA BANK, a Michigan banking corporation
("Comerica") (BankBoston, PNC, Dresdner, KeyBank, CoreStates, Crestar, Summit,
Comerica and the other lending institutions which are listed from time to time
on Schedule 1 are collectively hereinafter, the "Banks") and BANKBOSTON, N.A.,
as agent for itself and such other lending institutions (the "Agent").
WHEREAS, BankBoston provided an unsecured revolving credit facility in the
maximum amount of $325,000,000 (the "Facility") to the Borrower pursuant to a
Loan Agreement among the Borrower, the Company and BankBoston dated May 16, 1997
and having an effective date of May 20, 1997 (the "Existing Agreement"), and
Borrower used the initial advance of loan proceeds under such facility to pay
certain secured indebtedness as necessary to discharge liens on the real
property listed on Schedule 1.1 hereto;
WHEREAS, as contemplated by the Existing Agreement, pursuant to a
syndication undertaken by BankBoston and its affiliate, BancBoston Securities,
Inc. certain lending institutions have agreed to become Banks and provide the
Core Commitment and the Additional Commitment as set forth on the signature
pages hereto and on Schedule 1.2 hereto;
WHEREAS, on the Effective Date each of the Banks other than BankBoston
(collectively the "Syndication Banks") will advance to BankBoston its Commitment
Percentage of the Loans in the aggregate amount of $172,000,000 outstanding on
the Effective Date; and
WHEREAS, the parties hereto desire to amend and restate the Existing
Agreement in its entirety such that after the Effective Date the Facility shall
be subject to the terms and conditions set forth herein;
NOW, THEREFORE, to accomplish these purposes, the Agent, the Borrower, the
Company and the Banks hereby amend and restate the Existing Agreement in its
entirety and agree as follows:
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(S)1. DEFINITIONS OF RULES OF INTERPRETATION
(S) 1.1. Definitions. The following terms shall have the meanings set
forth in this (S)1 or elsewhere in the provisions of this Agreement referred to
below:
Additional Commitment. The portion (if any) of each Bank's Commitment
which will be retired on the Commitment Reduction Date if the Borrower exercises
the Commitment Reduction Option.
Additional Commitment Banks. Those Banks which provide an Additional
Commitment.
Affiliated Banks. Any commercial bank which is (i) the parent corporation
of any of the Banks, (ii) a wholly-owned subsidiary of any of the Banks or (iii)
a wholly-owned subsidiary of the parent corporation of any of the Banks.
Agent. BankBoston, N.A. acting in its capacity as agent for the Banks or
any successor agent.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time.
Aggregate Occupancy Rate. With respect to the Unencumbered Properties at
any time, the ratio, as of such date, expressed as a percentage, of (i) the net
leasable area of all Unencumbered Properties leased to tenants paying rent
pursuant to Leases other than Leases which are in material default, to (ii) the
aggregate net leasable area of all Unencumbered Properties, excluding from both
(i) and (ii) the net leasable area of buildings under construction prior to the
date of substantial completion of such construction.
Agreement. This Amended and Restated Loan Agreement, including the
Schedules and Exhibits hereto.
Applicable Margin. As of any date of determination:
(i) 0.90%, if the Moody's Rating is at least Baal and the S&P Rating is
at least BBB+,
(ii) 1.00%, if the Moody's Rating is at least Baa2 and the S&P Rating is
at least BBB but the condition set forth in clause (i) of this
----------
definition is not satisfied,
(iii) 1.10%, if the Moody's Rating is at least Baa3 and the S&P Rating is
at least BBB- but neither the condition set forth in clause (i) of
----------
this definition, nor the condition set forth in clause (ii) of this
-----------
definition, is satisfied,
2
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(iv) 1.25%, if (A) the Moody's Rating is lower than Baa3 (or if there is
no Moody's Rating) or the S&P Rating is lower than BBB- (or if
there is no S&P Rating) and (B) Total Liabilities are less than 50%
of Total Assets, or
(v) 1.35% if the condition set forth in clause (iv)(A) of this
--------------
definition exists and Total Liabilities equal or exceed 50% of
Total Assets.
Any change in the Applicable Margin caused by a change in the ratio of Total
Liabilities to Total Assets shall become effective on the first day following
the end of the fiscal quarter at which such ratio was computed and any
additional interest due or credit for overpayment shall be made on the first
Interest Payment Date following the delivery of the first Compliance Certificate
which reflects such change in said ratio above or below the 50% level. The
Applicable Margin is 1.25% during the period from the Facility Closing Date
through June 30, 1997 based on the ratio of Total Liabilities to Total Assets of
48.02% as of March 31, 1997. Any change in the Applicable Margin caused by a
change in the Moody's Rating or the S&P Rating shall become effective on the
first day following the Agent's receipt of notice of such change.
Assignment and Acceptance. See (S)18.
Balance Sheet Date. December 31, 1996.
Banks. BankBoston and the other lending institutions listed from time to
time on Schedule 1 hereto and any other Person who becomes an assignee of any
rights of a Bank pursuant to (S)18 or a Person who acquires all or
substantially all of the stock or assets of a Bank.
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by BankBoston at the Agent's Head Office as its "base rate", and
(b) one half of one percent (1/2%) above the overnight federal funds effective
rate as published by the Board of Governors of the Federal Reserve System, as in
effect from time to time.
Base Rate Loans. Those Loans bearing interest calculated by reference to
the Base Rate.
BankBoston. See preamble.
BankBoston Secured Revolver. The revolving line of credit in the maximum
amount of $100,000,000 with a maturity date of December 13, 1997 provided to the
Borrower by BankBoston, PNC, CoreStates and Dresdner pursuant to a Loan
Agreement dated December 13, 1996, as amended by First Amendment dated March 11,
1997.
Borrower. As defined in the preamble hereto.
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Buildings. The buildings, structures and other improvements now or
hereafter located on the Unencumbered Properties.
Business Day. Any day on which banking institutions in Boston,
Massachusetts, are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
Capitalized Leases. Leases under which the Borrower is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the Borrower in accordance
with generally accepted accounting principles.
CERCLA. See (S)6.18.
Code. The Internal Revenue Code of 1986, as amended and in effect from time
to time.
Commitment. With respect to each Bank, the amount set forth from time to
time on Schedule 1.2 hereto as the amount of such Bank's commitment to make
Loans to the Borrower. During the Initial Period each Bank's Commitment is
allocated between its Core Commitment and its Additional Commitment as set forth
from time to time on Schedule 1.2.
Commitment Percentage. With respect to each Bank, the percentage set forth
from time to time on Schedule 1.2 hereto as such Bank's percentage of the Total
Commitment. If Borrower exercises its option to reduce the Total Commitment
pursuant to (S)2.2(a), the Commitment Percentages of the Banks will change
effective upon the Commitment Reduction Date.
Commitment Reduction Date. See (S)2.2(a).
Commitment Reduction Option. The Borrower's option to reduce the Total
Commitment by $100,000,000 by retiring the Additional Commitments pursuant to
(S)2.2(a).
Commitment Reduction Paydown. See (S)2.2(b).
Company. See preamble.
Conversion Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with (S)2.6.
Core Commitment. The portion of each Bank's Commitment which will not be
retired on the Commitment Reduction Date if the Borrower exercises the
Commitment Reduction Option.
Default. See (S)12.1.
4
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Delinquent Bank. See (S)14.5(c).
Distribution. The declaration or payment of any dividend or distribution of
cash or cash equivalents to the shareholders of the Company or the limited
partners of the Borrower, or any distribution to any officer, employee or
director of the Borrower or the Company, other than employee compensation
consistent with past practices.
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
located within the United States that will be making or maintaining Base Rate
Loans.
Drawdown Date. The date on which any Loan is made or is to be made, and the
date on which any Loan is converted or continued in accordance with (S)2.6.
EBITDA. The Borrower's earnings before interest, taxes, depreciation and
amortization, as determined in accordance with generally accepted accounting
principles.
Effective Date. The date upon which this Agreement shall become effective
pursuant to (S)10. Unless the Agent notifies the Borrower and the Banks that
some other date is the Effective Date, the Effective Date shall be the date set
forth on the first page of this Agreement.
Eligible Assignee. Any of (a) a commercial bank organized under the laws of
the United States, or any State thereof or the District of Columbia, and having
total assets in excess of $1,000,000,000; (b) a savings and loan association or
savings bank organized under the laws of the United States, or any State thereof
or the District of Columbia, and having a net worth of at least $100,000,000,
calculated in accordance with generally accepted accounting principles; (c) a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development (the "OECD"), and
having total assets in excess of $1,000,000,000, provided that such bank is
acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; and (d) the
central bank of any country which is a member of the OECD. Notwithstanding
anything to the contrary, the term Eligible Assignee shall exclude any Person
controlling, controlled by or under common control with, the Borrower or the
Company.
Employee Benefit Plan. Any employee benefit plan within the meaning of (S)3
(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. See (S)6.18(a).
5
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ERISA. The Employee Retirement Income Security Act of 1974, as amended and
in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with the
Borrower under (S)414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of (S)4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any of the Banks would
be required to maintain reserves under Regulation D of the Board of Governors of
the Federal Reserve System (or any successor or similar regulations relating to
such reserve requirements) against "Eurocurrency Liabilities" (as that term is
used in Regulation D), if such liabilities were outstanding. The Eurocurrency
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Agent in its sole
discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
that shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the quotient (rounded upwards to the nearest
1/16 of one percent) of (a) the rate at which the Agent is offered Dollar
deposits two Eurodollar Business Days prior to the beginning of such Interest
Period in an interbank eurodollar market where the eurodollar and foreign
currency and exchange operations of the Agent are customarily conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of the Eurodollar
Rate Loan to which such Interest Period applies, divided by (b) a number equal
to 1.00 minus the Eurocurrency Reserve Rate.
Eurodollar Rate Loans. Loans bearing interest calculated by reference to
the Eurodollar Rate.
Event of Default. See (S)12.1.
Existing Agreement. See recitals.
6
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Facility. The unsecured revolving line of credit loan facility provided to
the Borrower pursuant to the Existing Agreement and this Agreement.
Facility Closing Date. May 20, 1997
Fixed Charges. With respect to any fiscal period of the Borrower, an amount
equal to the sum of (i) Interest Expense, (ii) regularly scheduled installments
of principal payable with respect to all Indebtedness of Borrower, (iii) current
maturities on Recourse Indebtedness not refinanced with Loans hereunder or other
replacement Indebtedness or otherwise repaid plus (iv) all dividend payments due
to the holders of any preferred stock of the Company and all distributions due
to the holders of any limited partnership interests in the Borrower other than
limited partner distributions based on the per share dividend paid on the common
stock of the Company.
Fixed Rate Prepayment Fee. See (S)3.3.
Funds From Operations. With respect to any fiscal period of the Borrower,
an amount equal to the Borrower's Funds From Operations determined in accordance
with the definition approved by the National Association of Real Estate
Investment Trusts.
GECC Line of Credit. See (S)7.12.
Generally Accepted Accounting Principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Borrower
adopting the same principles; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in which
such principles have been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of (S)3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guarantor. Each of the Company and the Guarantor Subsidiaries.
Guarantor Subsidiaries. The partnerships and corporations designated as
Guarantor Subsidiaries on Schedule 1.3 hereto and any other partnerships or
corporations which are at least 85% owned by Borrower and which execute and
deliver a Guaranty.
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Guaranty. The Unconditional Guaranty of Payment and Performance from each
Guarantor to the Agent pursuant to which such Guarantor has guaranteed the
Obligations.
Hazardous Substances. See (S)6.18(b).
Indebtedness. All obligations, contingent and otherwise, that in accordance
with generally accepted accounting principles should be classified upon the
obligor's balance sheet as liabilities, including in any event the following
whether or not so classified: (a) the Obligations, (b) all debt and similar
monetary obligations for borrowed money, whether direct or indirect; (c) 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; (d) all guarantees, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness or obligations
of others, including any obligation to supply funds to or in any manner to
invest in, directly or indirectly, the debtor, 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; and (e) joint
venture and partnership obligations, contingent or otherwise of the type set
forth in (a) through (d) above.
Initial Period. The period beginning on the Facility Closing Date and
ending on the earlier of (i) December 15, 1997 or (ii) the Commitment Reduction
Date.
Interest Expense. With respect to any fiscal period of the Borrower, an
amount equal to the sum of the following with respect to all Indebtedness
(including without limitation Subordinated Indebtedness) of the Borrower and the
Related Companies: (i) total interest expense, accrued in accordance with
generally accepted accounting principles plus (ii) all capitalized interest
determined in accordance with generally accepted accounting principles, plus
(iii) the amortization of deferred financing costs.
Interest Payment Date. As to any Base Rate Loan or Eurodollar Rate Loan,
the first day of each calendar month.
Interest Period. With respect to each Loan, (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in a Loan Request
(i) for any Base Rate Loan, the day on which such Base Rate Loan is paid in full
or converted to a Eurodollar Rate Loan; and (ii) for any Eurodollar Rate Loan,
1, 2, 3 or 6 months; and (b) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Loan and ending on the
last day of one of the periods set forth above, as selected by the Borrower in a
Conversion Request; provided that all of the foregoing provisions relating to
Interest Periods are subject to the following:
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(A) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on the
immediately preceding Eurodollar Business Day;
(B) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a Business Day, that Interest Period shall end on the next
succeeding Business Day;
(C) if the Borrower shall fail to give notice as provided in (S)2.6,
the Borrower shall be deemed to have requested a conversion of the affected
Eurodollar Rate Loan to a Base Rate Loan on the last day of the then current
Interest Period with respect thereto;
(D) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Eurodollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Eurodollar Business Day of a
calendar month; and
(E) the Borrower may not select any Interest Period relating to any
Eurodollar Rate Loan that would extend beyond the Maturity Date, or if the Term
Extension Option is exercised, the Term Extension Maturity Date.
Interest Rate Contracts. Interest rate swap, cap or similar agreements
providing for interest rate protection.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock, partnership or
membership interests or Indebtedness of; or for loans, advances, capital
contributions or transfers of property to, or in respect of any guaranties (or
other commitments as described under Indebtedness), or obligations of, any
Person. In determining the aggregate amount of Investments outstanding at any
particular time: (a) the amount of any Investment represented by a guaranty
shall be taken at not less than the principal amount of the obligations
guaranteed and still outstanding; (b) there shall be included as an Investment
all interest accrued with respect to Indebtedness constituting an Investment
unless and until such interest is paid; (c) there shall be deducted in respect
of each such Investment any amount received as a return of capital (but only by
repurchase, redemption, retirement, repayment, liquidating dividend or
liquidating distribution); (d) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued interest included as
provided in the foregoing clause (b) may be deducted when paid; and (e) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.
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Leases. Leases, licenses and agreements whether written or oral, relating
to the use or occupation of space in the Buildings on the Unencumbered
Properties by persons other than the owner thereof.
Lien. Any lien, encumbrance, mortgage, deed of trust, pledge, restriction
or other security interest. If title to any Real Estate Asset is held by a
Subsidiary of Borrower then any pledge or assignment of Borrower's stock,
partnership interest, limited liability company interest or other ownership
interest in such Subsidiary shall be deemed to be a Lien on the Real Estate
Assets owned by such Subsidiary.
Loan Documents. This Agreement, the Notes, the Guaranties and any and all
other agreements, documents and instruments now or hereafter evidencing,
securing or otherwise relating to the Loans.
Loan Request. See (S)2.5.
Loans. Loans made or to be made by the Banks to the Borrower pursuant to
(S)2, including without limitation, the Loans made by BankBoston pursuant to the
Existing Agreement prior to the Effective Date and reallocated among the Bank
pursuant to (S)2.8.
Material Adverse Effect means a material adverse effect on (i) the
business, Unencumbered Properties, results of operations or financial condition
of the Borrower and the Related Companies taken as a whole or (ii) the ability
of the Borrower or any Guarantor to perform its obligations under the Loan
Documents, or (iii) the validity or enforceability of any of the Loan Documents
or the remedies or material rights of the Agent or the Banks thereunder.
Maturity Date. May 20, 1999, or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
Maximum Loan Amount. Maximum Loan Amount shall mean the least of the
following: (i) the maximum amount of Loans which may be outstanding without
causing a violation of Section 9.1; (ii) the maximum amount of Loans which may
be outstanding without causing a violation of Section 9.2; and (iii) the Total
Commitment.
Moody's Rating. The rating for Borrower's senior long-term unsecured debt
assigned by Moody's Investors Services, Inc. or its successors.
Multiemployer Plan. Any multiemployer plan within the meaning of (S)3(37)
of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate.
Net Offering Proceeds. All cash proceeds received after the date hereof
by the Borrower or the Company as a result of the sale of common, preferred or
other classes of stock of the
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Company or the issuance of limited partnership interests in the Borrower less
customary costs and discounts of issuance paid by Company or Borrower in
connection therewith.
Net Operating Income. With respect to any fiscal period of the Borrower
and with respect to any one or more of the Real Estate Assets, the total rental
and other operating income from the operation of such Real Estate Assets after
deducting all expenses and other proper charges incurred by the Borrower in
connection with the operation of such Real Estate Assets during such fiscal
period, including, without limitation, property operating expenses, real estate
taxes and bad debt expenses, but before payment or provision for Fixed Charges,
income taxes, and depreciation, amortization, and other non-cash expenses, all
as determined in accordance with generally accepted accounting principles. In
the case of Real Estate Assets owned by Related Companies which are not wholly-
owned by Borrower, Net Operating Income shall be reduced by the amount of cash
flow of such Related Company allocated for distribution to the minority owners
of such Related Company. With respect to Real Estate Assets located outside of
the United States, Net Operating Income shall be converted from the currency in
which the applicable income and expenses are paid to Dollars using the currency
exchange rates in effect as of the end of the applicable fiscal period.
Notes. See (S)2.3.
Obligations. All indebtedness, obligations and liabilities of the
Borrower or any Guarantor to any of the Banks and the Agent, individually or
collectively, under this Agreement or any of the other Loan Documents or in
respect of any of the Loans or the Notes or other instruments at any time
evidencing any thereof, whether existing on the date of this Agreement or
arising or incurred hereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law of otherwise.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by (S)4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Acquisition. The acquisition by Borrower or any Related Company
of Real Estate Assets which, in the aggregate, are primarily leased or intended
to be leased primarily for industrial or office purposes (including "flex" and
warehouse uses), whether such acquisition is accomplished by a direct purchase
of such Real Estate Assets or by a merger or acquisition of stock or other
ownership interests or debt securities such that the owner of such Real Estate
becomes a Related Company.
Permitted Build-To-Suit Developments. Permitted Developments with respect
to which, at the date of determination, at least sixty percent (60%) of the net
leasable area of the buildings
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to be constructed pursuant thereto are subject to executed Leases having an
average term of not less than four (4) years and which obligate the tenants
named therein to accept occupancy and commence paying rent promptly upon the
issuance of a certificate of occupancy with respect thereto.
Permitted Developments. The construction of any new buildings or the
construction of additions expanding existing buildings or the rehabilitation of
the existing buildings (other than normal refurbishing and tenant fit up work
when one tenant leases space previously occupied by another tenant) relating to
any Real Estate Assets of the Borrower or any of the Related Companies and each
Permitted Development shall be counted for purposes of (S)8.2 from the time of
commencement of the applicable construction work until a final certificate of
occupancy has been issued with respect to such project in the amount of the
total projected cost of such project.
Permitted Joint Ventures. Any entity in which Borrower has any direct or
indirect ownership interest, except the Company and the Related Companies,
including general partnerships, corporations, trusts and limited liability
companies, which own or propose to develop industrial or office properties
provided that neither Borrower or any Guarantor shall have any recourse
liability for the Indebtedness of such entity. Permitted Joint Ventures existing
on the date hereof are set forth in Schedule 1.3.
Permitted Liens. The following Liens, security interests and other
encumbrances:
(i) liens to secure taxes, assessments and other governmental
charges in respect of obligations not overdue, the Indebtedness with respect to
which is permitted by (S)8.1(c);
(ii) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations;
(iii) liens in respect of judgments or awards, the Indebtedness with
respect to which is permitted by (S)8.1(d);
(iv) liens of carriers, warehousemen, mechanics and materialmen,
and other like liens which are either covered by a full indemnity from a
creditworthy indemnitor or have been in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue, the Indebtedness
with respect to which is permitted by (S)8.1(c);
(v) encumbrances consisting of easements, rights of way, Leases,
covenants, restrictions on the use of real property and defects and
irregularities in the title thereto; and other minor liens or encumbrances none
of which in the opinion of the Borrower interferes materially with the use of
the property affected in the ordinary conduct of the business of the Borrower,
and which matters (x) do not individually or in the aggregate have a materially
adverse effect on the
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value of the Unencumbered Property and (xx) do not make title to such property
unmarketable by the conveyancing standards in effect where such property is
located;
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Prepayment Date. See (S)3.3.
Pro Forma Unsecured Debt Service Charges. For any fiscal quarter of the
Borrower, the sum of (a) an amount determined by the Agent based on a twenty-
five (25) year mortgage style amortization schedule, calculated on the Pro Forma
Unsecured Principal Amount and an interest rate equal to the greater of (i) ten
percent (10%) per annum or (ii) the then current ten (10) year U.S. Treasury
bill yield plus two percent (2%) plus (b) one-quarter of the actual debt service
charges due during the current fiscal year pursuant to the Subordinated
Debenture Indenture.
Pro Forma Unsecured Principal Amount. (a) With respect to Compliance
Certificates delivered pursuant to (S)7.4(d), the maximum principal amount of
Unsecured Indebtedness (excluding the Subordinated Debentures) outstanding at
any time during the applicable fiscal quarter; (b) with respect to Compliance
Certificates delivered pursuant to (S)2.5(a) or (S)11.1, the principal amount
of Unsecured Indebtedness (excluding the Subordinated Debentures) outstanding
after giving effect to the requested Loan; (c) with respect to Compliance
Certificates delivered pursuant to (S)7.13, the principal amount of Unsecured
Indebtedness (excluding the Subordinated Debentures) outstanding after giving
effect to the proposed transaction including any payments on the Loans to be
made in connection therewith.
Properties. All Real Estate Assets, Real Estate, and all other assets,
including, without limitation, intangibles and personalty owned by the Borrower
or any of the Related Companies or any Permitted Joint Venture.
Real Estate. All real property at any time owned, leased (as lessee or
sublessee) or operated by the Borrower, any Guarantor, or any of the Related
Companies or any Permitted Joint Venture.
Real Estate Assets. Those fixed and tangible properties consisting of
land, buildings and/or other improvements owned by the Borrower, by any
Guarantor, by any of the Related Companies or by any Permitted Joint Venture at
the relevant time of reference thereto, including without limitation, the
Unencumbered Properties, but excluding all leaseholds other than leaseholds
under ground leases having an unexpired term of at least 30 years.
Record. The grid attached to any Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
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Recourse Indebtedness. All Indebtedness except Indebtedness with respect
to which recourse for payment is contractually limited (except for customary
exclusions) to specific assets encumbered by a lien securing such Indebtedness.
Register. See (S)18.3.
Related Companies. The entities listed and described on Schedule 1.3
hereto, or thereafter, any entity whose financial statements are consolidated or
combined with the Borrower's pursuant to generally accepted accounting
principles, or any ERISA Affiliate.
Release. See (S)6.18(c)(iii).
Requisite Banks. As of any date, the Banks whose aggregate Commitments
constitute at least sixty-six percent (66%) of the Total Commitment provided
that the Agent must always be among the Requisite Banks (except that after an
Event of Default all actions by the Requisite Banks with respect to acceleration
of the Loans and the enforcement of the Loan Documents as provided in (S)12 and
in (S)14.11 shall be made without regard to whether the Agent is among the
Requisite Banks) and provided that the Commitments of any Delinquent Banks shall
be disregarded when determining the Requisite Banks.
Reserve Amount. With respect to any Real Estate Assets or group of Real
Estate Assets, a normalized annual reserve for capital expenditures, replacement
reserves and leasing costs at the rate of $0.10 per year per square foot of net
leasable area contained in all buildings on such Real Estate Assets. When the
Reserve Amount is used in computing an amount with respect to a fiscal period
which is shorter than a year, said amount shall be appropriately prorated.
Responsible Officer. With respect to the Company, any one of its
Chairman, President, Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, Treasurer, Executive Vice Presidents or Senior Vice
Presidents.
S&P Rating. The rating for Borrower's senior long-term unsecured debt
assigned by Standard & Poor's, a division of The McGraw-Hill Companies, Inc., or
its successors.
Secured Indebtedness. All Indebtedness of the Borrower and any of the
Related Companies which is secured by a Lien on any Properties.
Senior Interest Expense. With respect to any fiscal period of the
Borrower, an amount equal to Interest Expense minus the portion thereof relating
to Subordinated Indebtedness.
Subordinated Debentures. Indebtedness of Borrower with respect to its
Exchangeable Subordinated Debentures due July 1, 2001 issued and outstanding
pursuant to the Subordinated Debenture Indenture.
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Subordinated Debenture Indenture. The Indenture dated as of June 23, 1994
among the Borrower, the Company and The First National Bank of Boston as Trustee
relating to the Borrower's Exchangeable Subordinated Debentures due
July 1, 2001.
Subordinated Indebtedness. All Unsecured Indebtedness of Borrower which
is expressly subordinated and junior in right of payment to the prior payment in
full of the Obligations provided that the subordination provisions applicable to
such Indebtedness are satisfactory to the Agent. On the date hereof Subordinated
Indebtedness consists of the Subordinated Debentures.
Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent or other controlling Person shall at any time own
directly or indirectly through a Subsidiary or Subsidiaries at least a majority
(by number of votes) of the outstanding Voting Interests.
Syndication Banks. See recitals.
Tangible Net Worth. Total Assets minus Total Liabilities minus all
intangibles determined in accordance with generally accepted accounting
principles.
Term Extension Maturity Date. May 20, 2000.
Term Extension Option. See (S)3.1.
Title Insurance Company shall mean Commonwealth Land Title Insurance
Company.
Total Assets. The aggregate book value of all assets of the Borrower and
the Related Companies consolidated and determined in accordance with generally
accepted accounting principles plus accumulated depreciation and amortization
related to Real Estate Assets.
Total Commitment. The sum of the Commitments of the Banks, as in effect
from time to time.
Total Liabilities. The sum of the following (without duplication):
(i) all liabilities of the Borrower and the Related Companies consolidated and
determined in accordance with generally accepted accounting principles, (ii) all
Indebtedness of the Borrower and the Related Companies whether or not so
classified, including, without limitation, all outstanding Loans under this
Agreement, and (iii) the balance available for drawing under letters of credit
issued for the account of the Borrower or any of the Related Companies.
Total Operating Cash Flow. With respect to any fiscal period of the
Borrower the sum of (i) Funds From Operations plus (ii) Interest Expense
(excluding capitalized interest and any other portions of Interest Expense which
are not deducted in the computation of Funds From Operations) minus (iii) the
Reserve Amount for all Real Estate Assets owned by the Borrower or
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any of the Related Companies, all as determined in accordance with the
applicable definitions set forth herein except that any rent leveling
adjustments shall be deducted from Funds From Operations.
Type. As to any Loan its nature as a Base Rate Loan or a Eurodollar Rate
Loan.
Unencumbered Net Operating Income. With respect to any fiscal period of
the Borrower, the sum of the Net Operating Income of all Real Estate Assets
which were Unencumbered Properties hereunder during such fiscal period,
provided, however, there shall be excluded therefrom (i) the amount necessary so
that the Net Operating Income of any one Unencumbered Property does not exceed
fifteen percent (15%) of Unencumbered Net Operating Income and (ii) the amount
necessary so that the aggregate Net Operating Income of all Unencumbered
Properties located in the United Kingdom does not exceed four percent (4%) of
Unencumbered Net Operating Income.
Unencumbered Property. A Real Estate Asset which at the date of
determination, (i) is owned in fee by Borrower or one of the Guarantor
Subsidiaries, (ii) is improved with one or more completed industrial or office
buildings (including "flex" and warehouse buildings) of a type consistent with
the Borrower's business strategy; (iii) is not directly or indirectly subject to
any Lien (other than Permitted Liens) or to any negative pledge agreement or
other agreement that prohibits the creation of any Lien thereon; (iv) is a Real
Estate Asset with respect to which each of the representations contained in
(S)6.18 and (S)6.21 hereof is true and accurate as of such date of
determination; (v) may be legally conveyed separately from any other Real Estate
without the need to obtain any subdivision approval, zoning variance or other
consent or approval from an unrelated Person; (vi) is located in the United
States, Canada or the United Kingdom, and (vii) to the extent requested by the
Agent, the Borrower has delivered to the Agent historical operating and leasing
information relating to such Unencumbered Property, in form and substance
satisfactory to the Agent. Each Real Estate Asset which satisfies the conditions
set forth in this definition or with respect to which the Requisite Banks have
granted the necessary waivers pursuant to (S)5.2 shall be deemed to be an
Unencumbered Property only during such periods of time as Borrower has included
the same on the list of Unencumbered Properties attached to the most recent
Compliance Certificate delivered hereunder.
Unencumbered Property Value. With respect to any Unencumbered Property at
any time, an amount computed as follows: (a) the Net Operating Income of such
Unencumbered Property for the most recent fiscal quarter of the Borrower for
which financial statements have been delivered to the Agent pursuant to (S)7.4;
(b) then multiplying by four (4); (c) then subtracting from such annualized Net
Operating Income the Reserve Amount for such Unencumbered Property; and (d)
dividing such difference by 0.095. In the event that the Unencumbered Property
Value of any Unencumbered Property computed pursuant to the preceding sentence
exceeds fifteen percent (15%) of the Value of All Unencumbered Properties as of
the end of the most recent fiscal quarter of the Borrower for which financial
statements have been delivered to the Agent pursuant to (S)7.4 then the amount
in excess of said 15% level will be excluded when
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computing the Unencumbered Property Value for such Unencumbered Property. With
respect to any Unencumbered Property which, during the applicable fiscal
quarter, has been acquired by Borrower or has had the building or buildings
being constructed thereon completed and occupied by tenants, Borrower may
compute the Unencumbered Property Value for such Unencumbered Property based on
a pro forma Net Operating Income for such fiscal quarter, which computation must
be approved by the Agent.
Unsecured Indebtedness. All Indebtedness of Borrower or of any of the
Related Companies which is not secured by a Lien on any Properties including,
without limitation, the Loans, the Subordinated Indebtedness and any
Indebtedness evidenced by any bonds, debentures, notes or other debt securities
which may be hereafter issued by Borrower or by the Company. Unsecured
Indebtedness shall not include accrued ordinary operating expenses payable on a
current basis.
Unused Amount. See (S)4.2
Value of All Unencumbered Properties. When determined as of the end of a
fiscal quarter, an amount computed as follows: (a) Unencumbered Net Operating
Income; (b) then multiplying by four (4); (c) then subtracting from such
annualized Net Operating Income the Reserve Amount for all Unencumbered
Properties; and (d) dividing such difference by 0.095. When determined as of a
date which is during a fiscal quarter based on an updated list of Unencumbered
Properties attached to the applicable Compliance Certificate, the Value of All
Unencumbered Properties most recently computed as provided in the preceding
sentence of this definition will be adjusted by subtracting the Unencumbered
Property Value of the previous Unencumbered Properties which have been deleted
from such list and by adding the Unencumbered Property Value of the Unencumbered
Properties which have been added to such list; provided, however, that to the
extent the addition of Unencumbered Properties located in the United Kingdom
causes the aggregate Unencumbered Property Values of the Unencumbered Properties
located in the United Kingdom to exceed four percent (4%) of the Value of All
Encumbered Properties, the amount in excess of said 4% level will be excluded
when computing the Value of All Unencumbered Properties.
Variable Rate Indebtedness. The Loans and all other Indebtedness of the
Borrower which bears interest at a rate which is not fixed either through
maturity or for a term of at least thirty-six (36) months from the date that
such fixed rate became effective.
Voting Interests. Stock or similar ownership interests, of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control, manage
or conduct the business of the corporation, partnership, association, trust or
other business entity involved.
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(S)1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted successors
and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles applied on
a consistent basis by the accounting entity to which they refer and, except as
otherwise expressly stated, all use of accounting terms with respect to the
Borrower shall reflect the consolidation of the financial statements of Borrower
and the Related Companies.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in Massachusetts, have the meanings assigned to
them therein.
(h) Reference to a particular "(S)" refers to that section of
this Agreement unless otherwise indicated.
(i) The words "herein", "hereof', "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
(j) The words "so long as any Loan or Note is outstanding" shall
mean so long as such Loan or Note is not indefeasibly paid in full in cash.
(S)2. REVOLVING CREDIT FACILITY.
(S)2.1. Commitment to Lend; Limitation on Total Commitment. Subject to
the provisions of (S)2.5 and the other terms and conditions set forth in this
Agreement, each of the Banks severally agrees to lend to the Borrower and the
Borrower may borrow, repay, and reborrow from time to time between the Effective
Date and the Maturity Date (or, if the Term Extension Option is exercised, the
Term Extension Maturity Date) upon notice by the Borrower to the Agent given and
approved by the Agent in accordance with (S)2.5, such sums as are requested by
the Borrower up to a maximum aggregate principal amount outstanding (after
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giving effect to all amounts requested) at any one time equal to such Bank's
Commitment, provided that the sum of the outstanding amount of the Loans (after
giving effect to all amounts requested) shall not at any time exceed the Maximum
Loan Amount. The Loans shall be made pro rata in accordance with each Bank's
Commitment Percentage and the Banks shall at all times immediately adjust inter
se any inconsistency between each Bank's outstanding principal amount and each
Bank's Commitment. Each request for a Loan hereunder shall constitute a
representation and warranty by the Borrower that the conditions set forth in
(S)10 or (S)11 (whichever is applicable) have been satisfied on the date of such
request and will be satisfied on the proposed Drawdown Date of the requested
Loan, provided that the making of such representation and warranty by Borrower
shall not limit the right of any Bank not to lend upon a determination by the
Requisite Banks that such conditions have not been satisfied.
(S)2.2. Reduction of Commitment.
(a) Provided that no Default or Event of Default has occurred
and is continuing, the Borrower shall have the one time option to reduce the
Total Commitment by $100,000,000 from $325,000,000 to $225,000,000 effective
upon a date (the "Commitment Reduction Date") to be specified in a notice given
by the Borrower to the Agent at least ten (10) Business Days prior to the
Commitment Reduction Date. If the Borrower fails to exercise the option provided
in this (S)2.2(a) in a timely manner such that the Commitment Reduction Date is
not later than December 15, 1997, then such option shall be deemed to be waived.
Effective upon the Commitment Reduction Date (i) the Borrower shall prepay the
Loans to the extent necessary to reduce the outstanding principal balance of the
Loans to $225,000,000, (ii) the Commitment of each of the Additional Commitment
Banks will be reduced by retiring the Additional Commitments as set forth on
Schedule 1.2 hereto, and (iii) the Commitment Percentage of each of the
Additional Commitment Banks will be reduced and the Commitment Percentages of
each of the Banks other than the Additional Commitment Banks will be increased,
all as set forth in Schedule 1.2 hereto. The reduction of the Commitments on the
Commitment Reduction Date may not be reinstated.
(b) On the Commitment Reduction Date the outstanding principal
balance of the Loans shall be reallocated among the Banks such that after the
Commitment Reduction Date the outstanding principal amount of Loans owed to each
Bank shall be equal to such Bank's Commitment Percentage (as in effect after the
Commitment Reduction Date) of the outstanding principal amount of all Loans. In
the event that the Borrower is required to prepay the Loans on the Commitment
Reduction Date pursuant to (S)2.2(a) and/or elects to make an optional
prepayment of the Loans on the Commitment Reduction Date (together, the
"Commitment Reduction Paydown"), then to the extent possible such reallocation
shall be accomplished by distributing the Commitment Reduction Paydown to the
Banks on a non-prorata basis. Otherwise, on the Commitment Reduction Date those
Banks whose Commitment Percentage is increasing shall advance the funds to the
Agent and the funds so advanced shall be distributed among the Banks whose
Commitment Percentage is decreasing as necessary to accomplish the required
reallocation of the outstanding Loans. The funds so advanced shall be Base Rate
Loans
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<PAGE>
until converted to Eurodollar Rate Loans which are allocated among all Banks
based on their Commitment Percentages. To the extent that reallocation by either
method results in certain Banks receiving funds which are applied to Eurodollar
Loans prior to the last day of the applicable Interest Period, then the Borrower
shall pay to the Agent for the account of the affected Banks the Fixed Rate
Prepayment Fee which shall be determined separately for each such Bank in the
manner set forth in (S)3.3.
(c) Whether or not the Borrower shall have exercised its
Commitment Reduction Option under (S)2.2(a), the Borrower shall have the right
at any time after December 15, 1997, upon at least ten (10) Business Days' prior
written notice to the Agent, to reduce by $1,000,000 or an integral multiple of
$1,000,000 in excess thereof the unborrowed portion of the then Total
Commitment, provided that the Total Commitment shall not be reduced to less than
$150,000,000, whereupon the Commitments of the Banks shall be reduced pro rata
in accordance with their respective Commitment Percentages by the amount
specified in such notice. Upon the effective date of any such reduction, the
Borrower shall pay to the Agent for the respective accounts of the Banks the
full amount of any commitment fee then accrued on the amount of the reduction.
No reduction of the Commitments may be reinstated.
(d) Promptly following each reduction in the Total Commitment
pursuant to either (S)2.2(a) or (S)2.2(c) the Borrower shall execute and deliver
to the Agent new Notes for each Bank which has had its Commitment reduced so
that the principal amount of such Bank's Note shall equal its Commitment. The
Agent shall deliver such replacement Notes to the respective Banks in exchange
for the Notes replaced thereby which shall be surrendered by such Banks. Such
new Notes shall provide that they are replacements for the surrendered Notes and
that they do not constitute a novation, shall be dated the effective date of
such reduction in the Total Commitment and shall otherwise be in substantially
the form of the replaced Notes. Within five (5) days of issuance of any new
Notes pursuant to this (S)2.2(d), the Borrower shall deliver an opinion of
counsel, addressed to the Banks and the Agent, relating to the due
authorization, execution and delivery of such new Notes and the legality,
validity and binding effect thereof, and that the Obligations evidenced by the
new Notes have the same validity and enforceability as if given on the Effective
Date, in form and substance satisfactory to the Banks. The surrendered Notes
shall be canceled and returned to the Borrower.
(S)2.3. The Notes. The Loans shall be evidenced by separate promissory
notes of the Borrower in substantially the form of Exhibit A hereto (each a
"Note"), and completed with appropriate insertions. The Notes executed and
delivered on the date hereof shall replace the note payable to BankBoston dated
May 16, 1997 which will be cancelled and returned to the Borrower. One or more
Notes shall be payable to the order of each Bank in an aggregate principal
amount equal to such Bank's Commitment. The Borrower irrevocably authorizes each
Bank to make or cause to be made, at or about the time of the Drawdown Date of
any Loan or at the time of receipt of any payment of principal on such Bank's
Note, an appropriate notation on such Bank's Record reflecting the making of
such Loan or (as the case may be) the receipt of such payment. The outstanding
amount of the Loans set forth on such Bank's Record shall
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<PAGE>
(absent manifest error) be prima facie evidence of the principal amount thereof
owing and unpaid to such Bank, but the failure to record, or any error in so
recording, any such amount on the Record shall not limit or otherwise affect the
obligations of the Borrower hereunder or under any Note to make payments of
principal of or interest on any Note when due.
(S)2.4. Interest on Loans.
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the Base Rate.
(b) Each Eurodollar Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate equal to the Applicable Margin
per annum above the Eurodollar Rate determined for such Interest Period.
(c) The Borrower unconditionally promises to pay interest on
each Loan in arrears on each Interest Payment Date with respect thereto.
(S)2.5. Requests for Loans.
(a) The Borrower shall give to the Agent written notice in the
form of Exhibit B hereto of each Loan requested hereunder (a "Loan Request") no
less than (a) two (2) Business Days prior to the proposed Drawdown Date of any
Base Rate Loan and (b) four (4) Eurodollar Business Days prior to the proposed
Drawdown Date of any Eurodollar Rate Loan. Each such notice shall specify
(i) the principal amount of the Loan requested, (ii) the proposed Drawdown Date
of such Loan, (iii) the Interest Period for such Loan, and (iv) the Type of such
Loan, and shall be accompanied by a statement in the form of Exhibit C hereto
signed by a Responsible Officer setting forth in reasonable detail computations
evidencing compliance with the covenants contained in (S)9.1 through (S)9.10
hereof after giving effect to such requested Loan (a "Compliance Certificate").
Within one (1) Business Day after receipt of a Loan Request, the Agent shall
provide to each of the Banks by facsimile a copy of such Loan Request and
accompanying Compliance Certificate and each Bank shall, within 24 hours
thereafter, notify the Agent if it believes that any of the conditions contained
in (S)11 of this Agreement has not been met or waived. If such a notice is given
the Requisite Banks shall promptly determine whether all of the conditions
contained in (S)11 of this Agreement have been met or waived. If no such notice
is given by any Bank or if following such notice the Requisite Banks determine
that the conditions contained in (S)11 have been met or waived, each of the
Banks shall be obligated to fund its Commitment Percentage of the requested
Loans. Each such Loan Request shall be irrevocable and binding on the Borrower
and the Borrower shall be obligated to accept the Loan requested from the Banks
on the proposed Drawdown Date. Each Loan Request shall be in a minimum aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
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<PAGE>
(b) Notwithstanding anything contained in (S)2.5 (a) to the
contrary, in the event that the making of a requested Loan would cause non-
compliance with any of the covenants contained in (S)9.1 through (S)9.9 hereof,
the Agent may, in its sole discretion, reduce the amount of the Loan Request to
an amount which would enable the Borrower to maintain compliance with such
otherwise defaulted covenant or covenants and Borrower shall accept the Loan
made pursuant to such reduced Loan Request.
(S)2.6. Conversion Options.
(a) The Borrower may elect from time to time to convert any
outstanding Loan to a Loan of another Type, provided that (i) with respect to
any such conversion of a Eurodollar Rate Loan to a Base Rate Loan, the Borrower
shall give the Agent at least three (3) Business Days, prior written notice of
such election; (ii) with respect to any such conversion of a Eurodollar Rate
Loan into a Base Rate Loan, such conversion shall only be made on the last day
of the Interest Period with respect thereto; (iii) subject to the further
proviso at the end of this section and subject to (S)2.6(b) and (S)2.6(d) hereof
with respect to any such conversion of a Base Rate Loan to a Eurodollar Rate
Loan, the Borrower shall give the Agent at least four (4) Eurodollar Business
Days, prior written notice of such election and (iv) no Loan may be converted
into a Eurodollar Rate Loan when any Default or Event of Default has occurred
and is continuing. On the date on which such conversion is being made, each Bank
shall take such action as is necessary to transfer its Commitment Percentage of
such Loans to its Domestic Lending Office or its Eurodollar Lending Office, as
the case may be. All or any part of outstanding Loans of any Type may be
converted as provided herein, provided further that each Conversion Request
relating to the conversion of a Base Rate Loan to a Eurodollar Rate Loan shall
be for an amount equal to $5,000,000 or an integral multiple of $1,000,000 in
excess thereof and shall be irrevocable by the Borrower.
(b) Any Loans of any Type may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the notice provisions contained in (S)2.6(a); provided that no
Eurodollar Rate Loan may be continued as such when any Default or Event of
Default has occurred and is continuing but shall be automatically converted to a
Base Rate Loan on the last day of the first Interest Period relating thereto
ending during the continuance of any Default or Event of Default of which the
officers of the Agent active upon the Borrower's account have actual knowledge.
(c) In the event that the Borrower does not notify the Agent of
its election hereunder with respect to any Loan, such Loan shall be
automatically converted to a Base Rate Loan at the end of the applicable
Interest Period.
(d) The Borrower may not request a Eurodollar Rate Loan pursuant
to (S)2.5, elect to convert a Base Rate Loan to a Eurodollar Rate Loan pursuant
to (S)2.6(a) or elect to continue a Eurodollar Rate Loan pursuant to (S)2.6(b)
if, after giving effect thereto, there would be greater than eight (8)
Eurodollar Rate Loans outstanding. Any Loan Request for a Eurodollar Rate Loan
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<PAGE>
that would create greater than eight (8) Eurodollar Rate Loans outstanding shall
be deemed to be a Loan Request for a Base Rate Loan.
(S)2.7. Funds for Loans.
(a) Subject to (S)2.5 and other provisions of this Agreement,
not later than 11:00 a.m. (Boston time) on the proposed Drawdown Date of any
Loans, each of the Banks will make available to the Agent, at the Agent's Head
Office, in immediately available funds, the amount of such Bank's Commitment
Percentage of the amount of the requested Loans. Upon receipt from each Bank of
such amount, and upon receipt of the documents required by (S)(S)10 or 11
(whichever is applicable) and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Agent will make available to the Borrower
the aggregate amount of such Loans made available to the Agent by the Banks. The
failure or refusal of any Bank to make available to the Agent at the aforesaid
time and place on any Drawdown Date the amount of its Commitment Percentage of
the requested Loans shall not relieve any other Bank from its several obligation
hereunder to make available to the Agent the amount of such other Bank's
Commitment Percentage of any requested Loans but shall not obligate any other
Bank or Agent to fund more than its Commitment Percentage of the requested Loans
or to increase its Commitment Percentage.
(b) The Agent may, unless notified to the contrary by any Bank
prior to a Drawdown Date, assume that such Bank has made available to the Agent
on such Drawdown Date the amount of such Bank's Commitment Percentage of the
Loans to be made on such Drawdown Date, and the Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Bank makes available to the Agent such amount on a
date after such Drawdown Date, such Bank shall pay to the Agent on demand an
amount equal to the product of (i) the average computed for the period referred
to in clause (iii) below, of the weighted average interest rate paid by the
Agent for federal funds acquired by the Agent during each day included in such
period, times (ii) the amount of such Bank's Commitment Percentage of such
Loans, times (iii) a fraction, the numerator of which is the number of days or
portion thereof that elapsed from and including such Drawdown Date to the date
on which the amount of such Bank's Commitment Percentage of such Loans shall
become immediately available to the Agent, and the denominator of which is 365.
A statement of the Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be prima facie evidence of the amount due and
owing to the Agent by such Bank.
(S)2.8. Reallocation of Loans on Effective Date. The Borrower
acknowledges that the outstanding principal balance of the Loans on the
Effective Date is $172,000,000 and that the Borrower has no offsets, claims or
defenses with respect to such outstanding Loans. On the Effective Date the
outstanding principal balance of the Loans shall be reallocated among BankBoston
and the Syndication Banks such that after the Effective Date the outstanding
principal amount of Loans owed to each Bank shall be equal to such Bank's
Commitment
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Percentage of the outstanding amount of all Loans. Not later than 11:00 a.m.
(Boston time) on the Effective Date each of the Syndication Banks will make
available to the Agent at the Agent's Head Office in immediately available
funds, the amount of such Bank's Commitment Percentage of the outstanding
principal amount of the Loans which amounts will be distributed to BankBoston
for its own account. In addition, BankBoston shall receive and retain for its
own account 100% of the interest and unused commitment fees payable by the
Borrower hereunder attributable to the period from the Facility Closing Date
through and including the Effective Date.
(S)3. REPAYMENT OF THE LOANS.
(S)3.1. Maturity; Term Extension Option. (a) The Borrower
unconditionally promises to pay on the Maturity Date, and there shall become
absolutely due and payable on the Maturity Date, all of the Loans outstanding on
such date, together with any and all accrued and unpaid interest and charges
thereon unless prior to the Maturity Date the Borrower elects the Term Extension
Option pursuant to this (S)3.1. In such event, the Borrower unconditionally
promises to pay on the Term Extension Maturity Date, and there shall become
absolutely due and payable on the Term Extension Maturity Date, all of the Loans
outstanding on such date, together with any and all accrued and unpaid interest
and charges thereon.
(b) At any time prior to the Maturity Date, provided that no
Default or Event of Default has occurred and is continuing, the Borrower shall
have the option to extend the Maturity Date for one (1) year subject to
satisfaction of the following conditions: (a) the Interest Rate Contracts
required by (S)7.18 shall be extended to the extent such extension may be
required by the Agent, and (b) the Moody's Rating shall be at least Baa3 and the
S&P Rating shall be at least BBB-. The Term Extension Option shall be exercised
by written notice to the Agent at least ten (10) Business Days prior to the
Maturity Date. Such written notice must be accompanied by payment to BankBoston
of a Term Extension Option fee at the rate specified in the fee agreement dated
May 16, 1997 between the Borrower and BankBoston based on the Total Commitment
to be in effect after such extension taking into account any reduction pursuant
to (S)2.2. BankBoston shall be responsible for any Term Extension Option fees
which it may agree to pay to the other Banks which are then a party to this
Agreement. The Agent shall promptly notify the Banks of the Borrower's exercise
of the Term Extension Option.
(S)3.2. Mandatory Repayments of Loan. If at any time the sum of the
outstanding amount of the Loans exceeds the Maximum Loan Amount, then the
Borrower shall immediately pay the amount of such excess to the Agent for the
respective accounts of the Banks for application to the Loans.
(S)3.3. Optional Repayments of Loans. The Borrower shall have the right,
at its election, to repay the outstanding amount of the Loans, as a whole or in
part, on any Business Day, without penalty or premium; provided that the full or
partial prepayment of the outstanding amount of any Eurodollar Rate Loans made
pursuant to this (S)3.3 may be made only on the last
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day of the Interest Period relating thereto, except as set forth below in this
(S)3.3. The Borrower shall give the Agent no later than 10:00 a.m., Boston time,
at least three (3) Business Days' prior written notice of any prepayment
pursuant to this (S)3.3 of any Base Rate Loans and four (4) Eurodollar Business
Days, notice of any proposed repayment pursuant to this (S)3.3 of any Eurodollar
Rate Loans, specifying the proposed date of payment of Loans and the principal
amount to be paid. The Agent shall promptly notify each Bank of the principal
amount of such payment to be received by such Bank. Each such partial prepayment
of the Loans shall be in an integral multiple of $1,000,000 and shall be
accompanied by the payment of all charges outstanding on all Loans and of
accrued interest on the principal repaid to the date of payment and shall be
applied, in the absence of instruction by the Borrower, first to the principal
of Base Rate Loans and then to the principal of Eurodollar Rate Loans.
Notwithstanding anything contained herein to the contrary, the Borrower may make
a full or partial prepayment of a Eurodollar Rate Loan on a date other than the
last day of the Interest Period relating thereto, if all optional prepayments
(in whole or in part) on such Loans shall be accompanied by, and the Borrower
hereby promises to pay, a prepayment fee in an amount determined by the Agent in
the following manner:
(a) Fixed Rate Prepayment Fee. Borrower acknowledges that
prepayment or acceleration of a Eurodollar Loan during an Interest Period shall
result in the Banks incurring additional costs, expenses and/or liabilities and
that it is extremely difficult and impractical to ascertain the extent of such
costs, expenses and/or liabilities. (For all purposes of this Section, any Loan
not being made as a Eurodollar Rate Loan in accordance with the Loan Request
therefor, as a result of Borrower's cancellation thereof, shall be treated as if
such Eurodollar Rate Loan had been prepaid.) Therefore, on the date a Eurodollar
Rate Loan is prepaid or the date all sums payable hereunder become due and
payable, by acceleration or otherwise ("Prepayment Date"), Borrower will pay to
Agent, for the account of each Bank, (in addition to all other sums then owing),
an amount ("Fixed Rate Prepayment Fee") determined by the Agent to be the
amount, if any, by which (i) the amount of interest which would have accrued on
the prepaid Eurodollar Rate Loan for the remainder of the Interest Period at the
rate applicable to such Eurodollar Rate Loan exceeds (ii) the amount of interest
that would accrue on a Eurodollar Rate Loan in the same amount for the same
period if the Eurodollar Rate were set on the Prepayment Date. In determining
the Eurodollar Rate for purposes of clause (ii) of the preceding sentence, the
Agent shall use the period of 1, 2, 3 or 6 months which is nearest in duration
to the number of days remaining in the Interest Period applicable to the prepaid
Eurodollar Rate Loan.
(b) Upon the written notice to Borrower from Agent, Borrower
shall immediately pay to Agent, for the account of the Banks, the Fixed Rate
Prepayment Fee. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the parties hereto.
(c) Borrower understands, agrees and acknowledges the
following: (i) no Bank has any obligation to purchase, sell and/or match funds
in connection with the use of the Eurodollar Rate as a basis for calculating the
rate of interest on a Eurodollar Rate Loan; (ii) the
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Eurodollar Rate is used merely as a reference in determining such rate; and
(iii) Borrower has accepted the Eurodollar Rate as a reasonable and fair basis
for calculating such rate and a Fixed Rate Prepayment Fee. Borrower further
agrees to pay the Fixed Rate Prepayment Fee, if any, whether or not a Bank
elects to purchase, sell and/or match funds.
(S)4. CERTAIN GENERAL PROVISIONS.
(S)4.1. Revolving Credit Facility Fees and Agent's Fee. The Borrower has
paid to BankBoston revolving credit facility fees and agency fees in the amounts
specified in the fee agreement between BankBoston and the Borrower dated
May 16, 1997. BankBoston shall be responsible for any facility fees which it may
agree to pay to the Syndication Banks or to other Banks which become a party to
this Agreement pursuant to an assignment from BankBoston.
(S)4.2. Commitment Fee. The Borrower shall pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment Percentages
a commitment fee calculated at the rates set forth below per annum on the daily
amount by which the Total Commitment (as it may have been reduced pursuant to
(S)2.2) exceeds the outstanding amount of Loans (the "Unused Amount"):
<TABLE>
<CAPTION>
Unused Amount Fee Rate
------------- --------
<S> <C>
less than 1/3 of Total Commitment 15 basis points
at least 1/3 of Total Commitment
but less than 2/3 of Total Commitment 20 basis points
at least 2/3 of Total Commitment 25 basis points
</TABLE>
The commitment fee shall be payable on the basis of the applicable annual rate
quarterly in arrears on or before the third Business Day of each calendar
quarter for the immediately preceding calendar quarter commencing on the first
such date following the date hereof, with a final payment on the Maturity Date
or, if the Term Extension Option is exercised, the Term Extension Maturity Date
or any earlier date on which the Commitments shall terminate. If Borrower
exercises its option to reduce the Total Commitment pursuant to (S)2.2(a), the
commitment fee shall be computed separately for the portions of the quarter
prior to and after the Commitment Reduction Date and allocated among the Banks
based on the Commitment Percentages applicable during each portion of said
quarter.
(S)4.3. Funds for Payments.
(a) All payments of principal, interest, closing fees,
commitment fees and any other amounts due hereunder (other than as provided in
(S)2.2(b), (S)3.1(b), (S)4.1, (S)4.5 and (S)4.6) or under any of the other Loan
Documents, and all prepayments, shall be made to the Agent, for the respective
accounts of the Banks, at the Agent's Head Office, in each case in Dollars in
immediately available funds.
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(b) All payments by the Borrower hereunder and under any of the
other Loan Documents shall be made without setoff or counterclaim and free and
clear of and without deduction for any taxes, levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory liens, restrictions or conditions of
any nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein unless the
Borrower is compelled by law to make such deduction or withholding. If any such
obligation is imposed upon the Borrower with respect to any amount payable by it
hereunder or under any of the other Loan Documents, the Borrower shall pay to
the Agent, for the account of the Banks or (as the case may be) the Agent, on
the date on which such amount is due and payable hereunder or under such other
Loan Document, such additional amount in Dollars as shall be necessary to enable
the Banks or the Agent to receive the same net amount which the Banks or the
Agent would have received on such due date had no such obligation been imposed
upon the Borrower. The Borrower will deliver promptly to the Agent certificates
or other valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Borrower hereunder or under such other Loan
Document.
(S)4.4. Computations. All computations of interest on the Loans and of
other fees to the extent applicable shall be based on a 360-day year and paid
for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to Eurodollar Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension. The outstanding amount of the Loans as reflected on the Records
from time to time shall (absent manifest error) be considered correct and
binding on the Borrower unless within thirty (30) Business Days after receipt by
the Agent or any of the Banks from Borrower of any notice by the Borrower of
such outstanding amount, the Agent or such Bank shall notify the Borrower to the
contrary.
(S)4.5. Additional Costs, Etc. If any present or future applicable law
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Bank's Commitment or the Loans (other
than taxes based upon or measured by the income or profits of such Bank or the
Agent), or
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<PAGE>
(b) materially change the basis of taxation (except for changes
in taxes on income or profits) of payments to any Bank of the principal of or
the interest on any Loans or any other amounts payable to any Bank under this
Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or commitments of an office of
any Bank, or
(d) impose on any Bank any other conditions or requirements with
respect to this Agreement, the other Loan Documents, the Loans, the Commitment,
or any class of loans or commitments of which any of the Loans or the Commitment
forms a part;
and the result of any of the foregoing is
(i) to increase the cost to such Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such Bank's
Commitment, or
(ii) to reduce the amount of principal, interest or other amount
payable to such Bank or the Agent hereunder on account of the Commitments or any
of the Loans, or
(iii) to require such Bank or the Agent to make any payment or
to forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by such Bank or the Agent
from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Bank or
(as the case may be) the Agent at any time and from time to time and as often as
the occasion therefor may arise, pay to such Bank or the Agent, to the extent
permitted by law, such additional amounts as will be sufficient to compensate
such Bank or the Agent for such additional cost, reduction, payment or foregone
interest or other sum.
(S)4.6. Capital Adequacy. If any present or future law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) or the interpretation thereof by a court or governmental authority
with appropriate jurisdiction affects the amount of capital required or expected
to be maintained by banks or bank holding companies and any Bank or the Agent
determines that the amount of capital required to be maintained by it is
increased by or based upon the existence of the Loans made or deemed to be made
pursuant hereto, then such Bank or the Agent may notify the Borrower of such
fact, and the Borrower shall pay to such Bank or the Agent from time to time on
demand, as an additional fee payable hereunder, such amount as such Bank or the
Agent shall determine in good faith and certify in a notice to the Borrower to
be an amount that will adequately compensate such Bank or the Agent in light of
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<PAGE>
these circumstances for its increased costs of maintaining such capital. Each
Bank and the Agent shall allocate such cost increases among its customers in
good faith and on an equitable basis.
(S)4.7. Certificate. A certificate setting forth any additional amounts
payable pursuant to (S)(S)4.5 or 4.6 and a brief explanation of such amounts
which are due, submitted by any Bank or the Agent to the Borrower, shall be
prima facie evidence that such amounts are due and owing.
(S)4.8. Indemnity. In addition to the other provisions of this Agreement
regarding any such matters, the Borrower agrees to indemnify each Bank and to
hold each Bank harmless from and against any loss, cost or reasonable expense
(including loss of anticipated profits) that such Bank may sustain or incur as a
consequence of (a) a default by the Borrower in payment of the principal amount
of or any interest on any Eurodollar Rate Loans as and when due and payable,
including any such loss or expense caused by Borrower's breach or other default
and arising from interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its Eurodollar Rate Loans, (b) a default by
the Borrower in making a borrowing or conversion after the Borrower has given
(or is deemed to have given) a Loan Request or a Conversion Request, and (c) the
making of any payment of a Eurodollar Rate Loan or the making of any conversion
of a Eurodollar Rate Loan to a Base Rate Loan on a day that is not the last day
of the applicable Interest Period with respect thereto, including interest or
fees payable by such Bank to lenders of funds obtained by it in order to
maintain any such Eurodollar Rate Loan.
(S)4.9. Interest on Overdue Amounts. Overdue principal and (to the
extent permitted by applicable law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents shall bear
interest compounded monthly and payable on demand at a rate per annum equal to
four percent (4%) above the Base Rate until such amount shall be paid in full
(after as well as before judgment). In addition, the Borrower shall pay to the
Agent a late charge equal to three percent (3%) of any amount of principal
and/or interest and/or charges on the Loans which is not paid within ten (10)
days of the date when due.
(S)4.10. Inability to Determine Eurodollar Rate. In the event, prior to
the commencement of any Interest Period relating to any Eurodollar Rate Loan,
the Agent shall determine that adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate that would otherwise determine the rate of
interest to be applicable to any Eurodollar Rate Loan during any Interest
Period, the Agent shall forthwith give notice of such determination (which shall
be conclusive and binding on the Borrower) to the Borrower. In such event
(a) any Loan Request with respect to Eurodollar Rate Loans shall be
automatically withdrawn and shall be deemed a request for Base Rate Loans,
(b) each Eurodollar Rate Loan will automatically, on the last day of the then
current Interest Period thereof, become a Base Rate Loan, and (c) the
obligations of the Banks to make Eurodollar Rate Loans shall be suspended until
the Agent determines that the circumstances giving rise to such suspension no
longer exist, whereupon the Agent shall so notify the Borrower.
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(S)4.11. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Loans, such Bank shall forthwith give notice of such
circumstances to the Borrower and thereupon (a) the Commitment of such Bank to
make Eurodollar Rate Loans or convert Loans of another Type to Eurodollar Rate
Loans shall forthwith be suspended and (b) the Eurodollar Rate Loans then
outstanding shall be converted automatically to Base Rate Loans on the last day
of each Interest Period applicable to such Eurodollar Rate Loans or within such
earlier period as may be required by law. The Borrower hereby agrees promptly to
pay to the Agent for the account of such Bank, upon demand, any additional
amounts necessary to compensate such Bank for any costs incurred by such Bank in
making any conversion in accordance with this (S)4.11, including any interest or
fees payable by such Bank to lenders of funds obtained by it in order to make or
maintain its Eurodollar Rate Loans hereunder.
(S)4.12. Replacement of Banks. If any of the Banks shall make a notice or
demand upon the Borrower pursuant to (S)4.5, (S)4.6, or (S)4.11 based on
circumstances or laws which are not generally applicable to the Banks organized
under the laws of the United States or any State thereof, the Borrower shall
have the right to replace such Bank with an Eligible Assignee selected by the
Borrower and approved by the Agent. In such event the assignment shall take
place on a date set by the Agent at which time the assigning Bank and the
Eligible Assignee shall enter into an Assignment and Acceptance as contemplated
by (S)18.1 (and clause (d) thereof shall not be applicable) and the assigning
Bank shall receive from the Eligible Assignee or the Borrower a sum equal to the
outstanding principal amount of the Loans owed to the assigning Bank together
with accrued interest thereon plus the accrued commitment fee under (S)4.2
allocated to the assigning Bank.
(S)5. UNENCUMBERED PROPERTIES; NO LIMITATION ON RECOURSE.
(S)5.1. Listing of Unencumbered Properties. The Borrower represents and
warrants that each of the Real Estate Assets listed on Schedule 1.1 will on the
Effective Date satisfy all of the conditions set forth in the definition of
Unencumbered Property. From time to time during the term of this Agreement
additional Real Estate Assets may become Unencumbered Properties and certain
Real Estate Assets which previously satisfied the conditions set forth in the
definition of Unencumbered Property may cease to be Unencumbered Properties by
virtue of property dispositions, creation of Liens or other reasons. There shall
be attached to each Compliance Certificate delivered pursuant to (S)7.4(d) or
(S)7.13 an updated listing of the Unencumbered Properties relied upon by the
Borrower in computing the Value of All Unencumbered Properties and the
Unencumbered Net Operating Income stated in such Compliance Certificate.
(S)5.2. Waivers by Requisite Banks. If any Real Estate Asset fails to
satisfy any of the requirements contained in the definition of Unencumbered
Property then the applicable Real Estate Asset may nevertheless be deemed to be
Unencumbered Property hereunder if the
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Requisite Banks grant the necessary waivers and vote to accept such Real Estate
Asset as an Unencumbered Property.
(S)5.3. Rejection of Unencumbered Properties. If at any time the Agent
determines that any Real Estate Asset listed as an Unencumbered Property by the
Borrower does not satisfy all of the requirements of the definition of
Unencumbered Property (to the extent not waived by the Requisite Banks pursuant
to (S)5.2) it may reject an Unencumbered Property by notice to the Borrower and
if the Agent so requests the Borrower shall revise the applicable Compliance
Certificate to reflect the resulting change in the Value of All Unencumbered
Properties and the Unencumbered Net Operating Income.
(S)5.4. Change in Circumstances. If at any time during the term of this
Agreement Borrower becomes aware that any of the representations contained in
(S)6 are no longer accurate with respect to any Unencumbered Property, it will
promptly so notify the Agent and either request a waiver pursuant to (S)5.2 or
confirm that such Real Estate Asset is no longer an Unencumbered Property. If
any waiver so requested is not granted by the Requisite Banks within ten (10)
Business Days the Agent shall reject the applicable Unencumbered Property
pursuant to (S)5.3.
(S)5.5. No Limitation on Recourse. The Obligations are full recourse
obligations of the Borrower and, to the extent provided in the applicable
Guaranty, of the Guarantors, and all of their respective Real Estate Assets and
other properties shall be available for the indefeasible payment in full in cash
and performance of the Obligations. Notwithstanding anything to the contrary
contained herein, the trustees of Liberty Property Trust shall have no personal
liability of any nature under this document. The Agent and the Banks shall look
solely to the assets of Liberty Property Trust to satisfy any liability or
recourse against Liberty Property Trust hereunder.
(S)5.6. Additional Guarantor Subsidiaries. If Borrower desires that a
Real Estate Asset owned by a Related Company which is not previously a Guarantor
Subsidiary become an Unencumbered Property, then provided that the applicable
Related Company is at least 85% owned by Borrower, such Related Company may
become a Guarantor Subsidiary upon delivery to the Agent the following, all in
form and substance satisfactory to the Agent: (a) a Guaranty in substantially
the form of the Guaranty executed and delivered by the Guarantor Subsidiaries
prior to the Effective Date, (b) good standing certificates, general partner
certificates, secretary certificates, opinions of counsel and such other
documents as may be reasonably requested by the Agent. The Agent shall provide
copies of said documents to the Banks.
(S)6. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agent and each of the Banks as follows:
(S)6.1. Authority; Etc.
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(a) Organization; Good Standing. The Company (i) is a Maryland
real estate investment trust duly organized, validly existing and in good
standing under the laws of the State of Maryland, (ii) has all requisite power
to own its properties and conduct its business as now conducted and as presently
contemplated, and (iii) to the extent required by law is in good standing as a
foreign entity and is duly authorized to do business in the States in which the
Unencumbered Properties are located and in each other jurisdiction where such
qualification is necessary except where a failure to be so qualified in such
other jurisdiction would not have a Materially Adverse Effect. The Borrower is a
Pennsylvania limited partnership, and each Guarantor Subsidiary is a
Pennsylvania limited partnership or a Pennsylvania corporation, and each such
entity is duly organized, validly existing and in good standing under the laws
of the State of its formation, has all requisite power to own its properties and
conduct its business as presently contemplated and is duly authorized to do
business in the States in which the Unencumbered Properties owned by it are
located and in each other jurisdiction where such qualification is necessary
except where a failure to be so qualified in such other jurisdiction would not
have a Material Adverse Effect.
(b) Authorization. The execution, delivery and performance of
this Agreement and the other Loan Documents to which the Borrower is to become a
party and the transactions contemplated hereby and thereby (i) are within the
authority of the Borrower, (ii) have been duly authorized by all necessary
proceedings on the part of the Borrower and the Company as general partner of
Borrower, (iii) do not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which the Borrower or the
Company is subject or any judgment, order, writ, injunction, license or permit
applicable to the Borrower or the Company and (iv) do not conflict with any
provision of the Borrower's partnership agreement or Company's declaration of
trust, charter documents or bylaws, or any agreement (except agreements as to
which such a conflict would not result in a Material Adverse Effect) or other
instrument binding upon, the Borrower or the Company or to which any of their
properties are subject. The execution, delivery and performance of the Guaranty
and the other Loan Documents to which any Guarantor is to become a party and the
transactions contemplated hereby and thereby (i) are within the authority of
such Guarantor, (ii) have been duly authorized by all necessary proceedings on
the part of such Guarantor, (iii) do not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation to which
such Guarantor is subject or any judgment, order, writ, injunction, license or
permit applicable to such Guarantor and (iv) do not conflict with any provision
of such Guarantor's charter documents or bylaws, partnership agreement,
declaration of trust, or any agreement (except agreements as to which such a
conflict would not result in a Material Adverse Effect) or other instrument
binding upon such Guarantor or to which any of such Guarantor's properties are
subject.
(c) Enforceability. The execution and delivery of this Agreement
and the other Loan Documents to which the Borrower is or is to become a party
will result in valid and legally binding obligations of the Borrower enforceable
against it in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
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enforcement of creditors' rights and except to the extent that availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought. The
execution and delivery of the Guaranty and the other Loan Documents to which any
Guarantor is or is to become a party will result in valid and legally binding
obligations of such Guarantor enforceable against such Guarantor in accordance
with the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting generally the enforcement of creditors,
rights and except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
(S)6.2. Governmental Approvals. The execution, delivery and performance
by the Borrower and each Guarantor of this Agreement and the other Loan
Documents to which the Borrower or such Guarantor is or is to become a party and
the transactions contemplated hereby and thereby do not require the approval or
consent of, or filing with, any governmental agency or authority other than
those already obtained.
(S)6.3. Title to Properties.
(a) Either the Borrower or a Guarantor holds good and clear
record and marketable fee simple title to the Unencumbered Properties, subject
to no liens except for the Permitted Liens.
(b) Except as indicated on Schedule 6.3 hereto, the Borrower
owns all of the properties reflected in the balance sheet of the Borrower as at
the Balance Sheet Date or acquired since that date (except properties sold or
otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
(S)6.4. Financial Statements. The following financial statements have
been furnished to each of the Banks.
(a) A balance sheet of the Company as of the Balance Sheet Date,
and a statement of operations and statement of cash flows of the Company for the
fiscal year then ended, a balance sheet of the Borrower as of the Balance Sheet
Date, and a statement of operations and statement of cash flows of the Borrower
for the fiscal year then ended, all accompanied by an auditor's report prepared
without qualification by Ernst & Young LLP. Such balance sheets and statements
of operations and of cash flows have been prepared in accordance with generally
accepted accounting principles and fairly present the financial condition of the
Borrower and the Company, respectively as at the close of business on the date
thereof and the results of operations and cash flows for the fiscal year then
ended. There are no contingent liabilities of the Borrower or the Company,
respectively, as of such date involving material amounts, known to the officers
of the Company not disclosed in said balance sheet and the related notes
thereto.
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(b) A balance sheet and a statement of operations and statement
of cash flows of the Company and a balance sheet and a statement of operations
and statement of cash flows of the Borrower for each of the fiscal quarters of
the Company ended since the Balance Sheet Date which the Company's Responsible
Officer certifies has been prepared in accordance with generally accepted
accounting principles consistent with those used in the preparation of the
annual audited statements delivered pursuant to paragraph (a) above and fairly
represents the financial condition of the Company and the Borrower,
respectively, as at the close of business on the dates thereof and the results
of operations and of cash flows for the fiscal quarters then ended (subject to
year-end adjustments). There are no contingent liabilities of the Borrower or
the Company as of such dates involving material amounts, known to the officers
of the Company, not disclosed in such balance sheets and the related notes
thereto.
(c) A statement prepared by the Borrower which sets forth the
Net Operating Income of each Unencumbered Property for the fiscal quarter of the
Borrower ended since the Balance Sheet Date.
(S)6.5. No Material Changes, Etc. Since the Balance Sheet Date, there
has occurred no material adverse change in the financial condition or assets or
business of the Borrower as shown on or reflected in the balance sheet of the
Borrower as of the Balance Sheet Date, or the statement of income for the fiscal
year then ended, other than changes in the ordinary course of business that have
not had any Material Adverse Effect either individually or in the aggregate.
(S)6.6. Franchises, Patents, Copyrights, Etc. The Borrower possesses all
franchises, patents, copyrights, trademarks, trade names, licenses and permits,
and rights in respect of the foregoing, adequate for the conduct of its business
substantially as now conducted without known conflict with any rights of others,
except to the extent the Borrower's failure to possess the same does not have a
Material Adverse Effect.
(S)6.7. Litigation. Except as listed and described on Schedule 6.7
hereto, there are no actions, suits, proceedings or investigations of any kind
pending or, to Borrower s knowledge, threatened against the Borrower, any
Guarantor or any of the Related Companies before any court, tribunal or
administrative agency or board that, if adversely determined, might, either in
any case or in the aggregate, have a Material Adverse Effect or materially
impair the right of the Borrower, any Guarantor or any of the Related Companies
to carry on business substantially as now conducted by it, or which question the
validity of this Agreement or any of the other Loan Documents, any action taken
or to be taken pursuant hereto or thereto, or which would result in a Lien on
any Unencumbered Property, or which will materially adversely affect the ability
of the Borrower or any Guarantor to pay and perform the Obligations in the
manner contemplated by this Agreement and the other Loan Documents.
(S)6.8. No Materially Adverse Contracts, Etc. Neither the Borrower nor
the Company is subject to any charter, trust or other legal restriction, or any
judgment, decree, order, rule or regulation that has or is expected in the
future to have a Material Adverse Effect. Neither the
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Borrower nor the Company is a party to any contract or agreement that has or is
expected, in the judgment of the Company's officers, to have any Material
Adverse Effect.
(S)6.9. Compliance With Other Instruments, Laws, Etc. Neither the
Borrower nor the Company is in violation of any provision of the Borrower's
partnership agreement or of the Company's charter documents, by-laws, or any
agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment, statute, license, rule
or regulation, in any of the foregoing cases in a manner that could result in
the imposition of substantial penalties or have a Material Adverse Effect.
(S)6.10. Tax Status. Each of the Borrower and the Company (a) has made or
filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject, and (b) has
paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company know of no basis for any such
claim.
(S)6.11. Event of Default. No Default or Event of Default has occurred
and is continuing.
(S)6.12. Investment Company Act. Neither the Borrower nor the Company is
an "investment company", or an "affiliated company" or a "principal underwriter"
of an "investment company", as such terms are defined in the Investment Company
Act of 1940.
(S)6.13. Absence of Financing Statements, Etc. There is no financing
statement, security agreement, chattel mortgage, real estate mortgage, equipment
lease, financing lease, option, encumbrance or other document existing, filed or
recorded with any filing records, registry, or other public office, that
purports to cover, affect or give notice of any present or possible future lien
or encumbrance on, or security interest in, any Unencumbered Property, except
Permitted Liens.
(S)6.14. Status of the Company. The Company (i) is a real estate
investment trust as defined in Section 856 of the Code (or any successor
provision thereto), (ii) has not revoked its election to be a real estate
investment trust, (iii) has not engaged in any "prohibited transactions" as
defined in Section 856(b)(6)(iii) of the Code (or any successor provision
thereto), and (iv) for its current "tax year" (as defined in the Code) is, and
for all prior tax years subsequent to its election to be a real estate
investment trust has been, entitled to a dividends paid deduction which meets
the requirements of Section 857 of the Internal Revenue Code. The common stock
of the Company is listed for trading on the New York Stock Exchange.
(S)6.15. Certain Transactions. Except as set forth on Schedule 6.15
hereto, none of the officers or employees of the Borrower or any Guarantor are
presently a party to any transaction with the Borrower or any Guarantor (other
than for services as employees, officers and trustees),
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including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
trustee or such employee or, to the knowledge of the Borrower and the Company,
any corporation, partnership, trust or other entity in which any officer,
trustee or any such employee or natural Person related to such officer, trustee
or employee or other Person in which such officer, trustee or employee has a
direct or indirect beneficial interest has a substantial interest or is an
officer or trustee.
(S)6.16. Benefit Plans: Multiemployer Plans: Guaranteed Pension Plans. As
of the date hereof as to any Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan, neither the Borrower nor any ERISA Affiliate maintains
or contributes to any Employee Benefit Plan, Multiemployer Plan or Guaranteed
Pension Plan. To the extent that Borrower or any ERISA Affiliate hereafter
maintains or contributes to any Employee Benefit Plan or Guaranteed Pension
Plan, it shall at all times do so in compliance with (S)7.17 hereof.
(S)6.17. Regulations U and X. No portion of any Loan is to be used for
the purpose of purchasing or carrying any "margin security" or "margin stock" as
such terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
(S)6.18. Environmental Compliance. The Borrower has caused Phase I
environmental assessments to be conducted with respect to the Real Estate
Assets. Based on the information contained in the reports received by Borrower
with respect to said environmental assessments, Borrower makes the following
representations and warranties:
(a) Except as may be set forth on Schedule 6.18, to the best of
Borrower's knowledge none of the Borrower, any Guarantor, any of the Related
Companies or any operator of the Real Estate or any portion thereof, or any
operations thereon is in violation, or alleged material violation, of any
judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters (hereinafter collectively referred to as the
"Environmental Laws"), including without limitation, those arising under the
Resource Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Federal Clean
Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any
state or local statute, regulation, ordinance, order or decree relating to
health, safety or the environment, including, without limitation, the
environmental statutes, regulations, orders and decrees of the States in which
any of the Unencumbered Properties may be located, which violation would have a
Material Adverse Effect or would materially decrease the value of an
Unencumbered Property.
(b) Except as set forth on Schedule 6.18 attached hereto, none
of the Borrower, the Guarantors or the Related Companies has received written
notice from any third party including, without limitation any federal, state or
local governmental authority with respect to
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any of the Unencumbered Properties or otherwise if the same would have a
Material Adverse Effect, (i) that it has been identified by the United States
Environmental Protection Agency ("EPA") as a potentially responsible party under
CERCLA with respect to a site listed on the National Priorities List, 40 C.F.R.
Part 300 Appendix B (1986); (ii) that any hazardous waste, as defined by 42
U.S.C.(S)9601(5), any hazardous substances as defined by 42 U.S.C.(S)9601(14),
any pollutant or contaminant as defined by 42 U.S.C.(S)9601(33) or any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Materials") which it has
generated, transported or disposed of have been found at any site at which a
federal, state or local agency or other third party has conducted or has ordered
that the Borrower, any Guarantor or any of the Related Companies conduct a
remedial investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any claim,
action, cause of action, complaint, or legal or administrative proceeding (in
each case, contingent or otherwise) arising out of any third party's incurrence
of costs, expenses, losses or damages of any kind whatsoever in connection with
the release of Hazardous Materials.
(c) Except as set forth on Schedule 6.18 attached hereto and
except to the extent the same would neither have a Material Adverse Effect nor
materially decrease the value of an Unencumbered Property, (i) to the best of
Borrower's knowledge no portion of the Real Estate has been used for the
handling, processing, storage or disposal of Hazardous Materials except in
material compliance with applicable Environmental Laws; and except as set forth
on Schedule 6.18, no underground tank or other underground storage receptacle
for Hazardous Materials is located on any portion of the Real Estate; (ii) in
the course of any activities conducted by the Borrower, any Guarantor, any of
the Related Companies or the operators of any Real Estate, or to the best of
Borrower s knowledge, any ground or space tenants on any Real Estate, no
Hazardous Materials have been generated or are being used on the Real Estate
except in material compliance with applicable Environmental Laws; (iii) there
has been no present, or to the best of Borrower's knowledge past, releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, disposing or dumping (a "Release") or threatened Release of Hazardous
Materials on, upon, into or from any Real Estate; (iv) to the best of Borrower's
knowledge, there have been no Releases on, upon, from or into any real property
in the vicinity of any of the Real Estate which, through soil or groundwater
contamination, may have come to be located on; and (v) to the best of Borrower's
knowledge, any Hazardous Materials that have been generated on any of the Real
Estate have been transported off-site only by carriers having an identification
number issued by the EPA, treated or disposed of only by treatment or disposal
facilities maintaining valid permits as required under applicable Environmental
Laws, which transporters and facilities have been and are, to the best of the
Borrower's knowledge, operating in material compliance with such permits and
applicable Environmental Laws. Notwithstanding that any representation contained
herein may be limited to the knowledge of the Borrower, any such limitation
shall not affect the covenants specified in (S)7.10 or elsewhere in this
Agreement.
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(d) None of the Real Estate is or shall be subject to any
applicable environmental clean-up responsibility law or environmental
restrictive transfer law or regulation, solely by virtue of the transactions set
forth herein and contemplated hereby.
(S)6.19. Subsidiaries and Affiliates. The Borrower has no Subsidiaries
except for the Related Companies listed on Schedule 1.3 and does not have an
ownership interest in any entity whose financial statements are not consolidated
with the Borrower's except for the Permitted Joint Ventures listed on Schedule
1.3. The Company is not a partner in any partnership other than Borrower and is
not a member of any limited liability company. The Company owns no material
assets other than its partnership interest in Borrower.
(S)6.20. Loan Documents. All of the representations and warranties of the
Borrower or any Guarantor made in the other Loan Documents or any document or
instrument delivered or to be delivered to the Agent or the Banks pursuant to or
in connection with any of such Loan Documents are true and correct in all
material respects.
(S)6.21. Buildings on the Unencumbered Properties. Except as set forth on
Schedule 6.21, to the best of Borrower's knowledge there are no material defects
in the roof, foundation, structural elements and masonry walls of the Buildings
on the Unencumbered Properties or their heating, ventilating and air
conditioning, electrical, sprinkler, plumbing or other mechanical systems which
would materially decrease the value of such Unencumbered Property.
(S)7. AFFIRMATIVE COVENANTS OF THE BORROWER. Borrower covenants and
agrees as follows, so long as any Loan or Note is outstanding or the Banks have
any obligations to make Loans:
(S)7.1. Punctual Payment. The Borrower will unconditionally duly and
punctually pay the principal and interest on the Loans and all other amounts
provided for in the Notes, this Agreement, and the other Loan Documents all in
accordance with the terms of the Notes, this Agreement and the other Loan
Documents.
(S)7.2. Maintenance of Office. The Borrower will maintain its chief
executive office in Malvern, Pennsylvania or at such other place in the United
States Of America as the Borrower shall designate upon written notice to the
Agent to be delivered within fifteen (15) days of such change, where notices,
presentations and demands to or upon the Borrower in respect of the Loan
Documents may be given or made.
(S)7.3. Records and Accounts. The Borrower will keep true and accurate
records and books of account in which full, true and correct entries will be
made in accordance with generally accepted accounting principles.
(S)7.4. Financial Statements, Certificates and Information. The Borrower
will deliver to each of the Banks:
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(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of the Borrower, the audited
balance sheets of the Borrower and of the Company at the end of such year, and
the related audited statements of operations and statements of cash flows and
Funds From Operations and taxable income for such year, each setting forth in
comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with generally
accepted accounting principles on a consolidated basis including the Borrower
and the Related Companies, and accompanied by an auditor's report prepared
without qualification by Ernst & Young LLP or by another independent certified
public accountant reasonably acceptable to the Agent;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three (3) fiscal
quarters of the Borrower, copies of the unaudited balance sheets of the Borrower
and of the Company as at the end of such quarter, and the related unaudited
statements of operations and statements of Funds From Operations and estimated
taxable income for the portion of the Borrower's fiscal year then elapsed, all
in reasonable detail and prepared in accordance with generally accepted
accounting principles, together with a certification by the principal financial
or accounting officer of the Company that the information contained in such
financial statements fairly presents the financial position of the Borrower and
of the Company on the date thereof (subject to year-end adjustments); provided,
however, that for so long as the Borrower and the Company are filing form 10-Q
with the SEC, the delivery of a copy thereof pursuant to paragraph (e) of this
(S)7.4 shall be deemed to satisfy this paragraph (b);
(c) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of the
Borrower, copies of a statement of the Net Operating Income for such fiscal
quarter for the Unencumbered Properties, prepared on a basis consistent with the
statements furnished pursuant to (S)6.4(c) ,and certified by a Responsible
Officer of the Company and, at the time of the annual financial statements
referred to in subsection (a) above and at the time of quarterly financial
statements referred to in subsection (b) above if requested by the Agent, a
consolidating statement setting forth the Net Operating Income for such fiscal
quarter for each Unencumbered Property listed by address;
(d) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement in the form of
Exhibit C hereto signed by a Responsible Officer of the Company and setting
forth in reasonable detail computations evidencing compliance with the covenants
contained herein and (if applicable) reconciliations to reflect changes in
generally accepted accounting principles since the Balance Sheet Date;
(e) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of the Company, copies of the
Form 10-K statement filed with the Securities and Exchange Commission ("SEC")
for such fiscal year, and as soon as practicable, but in any event not later
than forty-five (45) days after the end of each fiscal quarter, copies of the
Form 10-Q statement filed with the SEC for such fiscal quarter, provided that in
either case if
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the SEC has granted an extension for the filing of such statements, Borrower
shall deliver such statements to the Agent simultaneously with the filing
thereof with the SEC;
(f) promptly following the filing or mailing thereof, copies of
all other material of a financial nature filed with the SEC or sent to the
shareholders of the Company or to the limited partners of the Borrower and
copies of all corporate press releases promptly upon the issuance thereof;
(g) from time to time such other financial data and information
as the Agent may reasonably request;
(S)7.5. Notices.
(a) Defaults. The Borrower will promptly notify the Agent in
writing of the occurrence of any Default or Event of Default. If any Person
shall give any notice or take any other action in respect of a claimed default
(whether or not constituting a Default or an Event of Default under this
Agreement) under any note, evidence of Indebtedness, indenture or other
obligation to which or with respect to which the Borrower, Guarantor or any of
the Related Companies is a party or obligor, whether as principal or surety, and
if the principal amount thereof exceeds $5,000,000, and such default would
permit the holder of such note or obligation or other evidence of Indebtedness
to accelerate the maturity thereof, the Borrower shall forthwith give written
notice thereof to the Agent and each of the Banks, describing the notice or
action and the nature of the claimed default.
(b) Environmental Events. The Borrower will promptly notify the
Agent in writing of any of the following events: (i) upon Borrower's obtaining
knowledge of any violation of any Environmental Law regarding an Unencumbered
Property or any Real Estate or Borrower's operations which violation could have
a Material Adverse Effect; (ii) upon Borrower's obtaining knowledge of any
potential or known Release, or threat of Release, of any Hazardous Substance at,
from, or into an Unencumbered Property or any Real Estate which it reports in
writing or is reportable by it in writing to any governmental authority and
which is material in amount or nature or which could materially affect the value
of such Unencumbered Property or which could have a Material Adverse Effect;
(iii) upon Borrower s receipt of any notice of violation of any Environmental
Laws or of any Release or threatened Release of Hazardous Substances, including
a notice or claim of liability or potential responsibility from any third party
(including without limitation any federal, state or local governmental
officials) and including notice of any formal inquiry, proceeding, demand,
investigation or other action with regard to (A) Borrower's or any Person's
operation of an Unencumbered Property or any Real Estate if the same would have
a Material Adverse Effect, (3) contamination on, from or into an Unencumbered
Property or any Real Estate if the same would have a Material Adverse Effect, or
(C) investigation or remediation of off-site locations at which Borrower or any
of its predecessors are alleged to have directly or indirectly disposed of
Hazardous Substances; or (iv) upon Borrower's obtaining knowledge that any
expense or loss has been incurred by such
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governmental authority in connection with the assessment, containment, removal
or remediation of any Hazardous Substances with respect to which Borrower,
Guarantor or any of the Related Companies may be liable or for which a lien may
be imposed on an Unencumbered Property.
(c) Notification of Liens Against Unencumbered Properties or
Other Material Claims. The Borrower will, immediately upon becoming aware
thereof, notify the Agent in writing of any Liens (except Permitted Liens)
placed upon or attaching to any Unencumbered Properties or of any other setoff,
claims (including environmental claims), withholdings or other defenses which
could have a Material Adverse Effect.
(d) Notice of Litigation and Judgments. The Borrower will give
notice to the Agent in writing within fifteen (15) days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation and
proceedings affecting any of the Unencumbered Properties or affecting the
Borrower, Guarantor or any of the Related Companies or to which the Borrower,
Guarantor or any of the Related Companies is or is to become a party involving
an uninsured claim (or as to which the insurer reserves rights) against the
Borrower, Guarantor or any of the Related Companies that at the time of giving
of notice could reasonably be expected to have a Materially Adverse Effect, and
stating the nature and status of such litigation or proceedings. The Borrower
will give notice to the Agent, in writing, in form and detail satisfactory to
the Agent, within ten (10) days of any judgment not covered by insurance, final
or otherwise, against the Borrower in an amount in excess of $1,000,000.
(e) Notice of Rating Changes. The Borrower will immediately
notify the Agent in writing of the occurrence of any change in the Moody's
Rating or in the S&P Rating.
(S)7.6. Existence; Maintenance of REIT Status; Maintenance of
Properties. The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Maryland trust and
its status as a self administered real estate investment trust under the Code
and the existence of Borrower as a Pennsylvania limited partnership. The common
stock of the Company will at all times be listed for trading on either the New
York Stock Exchange or the American Stock Exchange. The Borrower will do or
cause to be done all things necessary to preserve and keep in full force all of
its rights and franchises which in the judgment of the Borrower may be necessary
to properly and advantageously conduct the businesses being conducted by it, the
Company or any of the Related Companies. The Borrower (a) will cause all of the
properties used or useful in the conduct of the business of Borrower, the
Company or any of the Related Companies to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment,
(b) will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Borrower may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, and (c) will continue to
engage primarily in the businesses now conducted by it and in related
businesses.
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(S)7.7. Insurance. With respect to the Real Estate Assets and other
properties and businesses of Borrower, the Guarantors and the Related Companies,
the Borrower will maintain or cause to be maintained insurance with financially
sound and reputable insurers against such casualties and contingencies as shall
be in accordance with the general practices of businesses engaged in similar
activities in similar geographic areas and in amounts, containing such terms, in
such forms and for such periods as may be reasonable and prudent. With respect
to the Unencumbered Properties, such insurance will include all risk casualty
insurance for the replacement cost of all Buildings including loss of rents for
12 months and, to the extent available, flood insurance. Commercial general
liability insurance shall include an excess liability policy with limits of at
least $50,000,000.
(S)7.8. Taxes. The Borrower will pay real estate taxes, other taxes,
assessments and other governmental charges against the Real Estate Assets before
the same become delinquent, and will duly pay and discharge, or cause to be paid
and discharged, before the same shall become overdue, all taxes, assessments and
other governmental charges imposed upon it and its other properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its properties; provided that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower shall have set aside on its books adequate reserves with
respect thereto; and provided further that the Borrower will pay all such taxes,
assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security therefor.
(S)7.9. Inspection of Properties and Books. The Borrower shall permit
the Banks, through the Agent or any of the Banks' other designated
representatives, to visit and inspect any of the Unencumbered Properties, to
examine the books of account of the Borrower, the Company and the Related
Companies (and to make copies thereof and extracts therefrom) and to discuss the
affairs, finances and accounts of the Borrower with, and to be advised as to the
same by, its officers, all at such reasonable times and intervals as the Agent
or any Bank may reasonably request.
(S)7.10 Compliance with Laws, Contracts, Licenses, and Permits. The
Borrower will comply, and will cause each Guarantor and all Related Companies to
comply, with (a) all applicable laws and regulations now or hereafter in effect
wherever its business is conducted, including all Environmental Laws, (b) the
provisions of all applicable partnership agreements, charter documents and by-
laws, (c) all agreements and instruments to which it is a party or by which it
or any of its Real Estate Assets may be bound including the Leases, and (d) all
applicable decrees, orders, and judgments except (with respect to (a) through
(d) above) to the extent such non-compliance would not have a Material Adverse
Effect. If at any time any permit or authorization from any governmental Person
shall become necessary or required in order that the Borrower or any Guarantor
may fulfill or be in compliance with any of its obligations hereunder or under
any of the Loan Documents, the Borrower will immediately take or cause to
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be taken all reasonable steps within the power of the Borrower to obtain such
authorization, consent, approval, permit or license and furnish the Agent and
the Banks with evidence thereof.
(S)7.11. Use of Proceeds. Subject to the provisions of (S)2.5 hereof, the
proceeds of the Loans shall be used by the Borrower for making Investments
permitted by (S)8.2, repayment of other Indebtedness, payment of Distributions
and for working capital and other purposes consistent with the covenants
contained herein.
(S)7.12. Discharges of Liens on Unencumbered Properties. A portion of the
initial advance of Loans on the Facility Closing Date was used to repay in full
and terminate the Borrower's line of credit in the maximum amount of
$250,000,000 with General Electric Capital Corporation ("GECC") secured by Liens
on approximately 100 of the Unencumbered Properties listed on Schedule 1.1 (the
"GECC Line of Credit"). On or before June 30, 1997, the Borrower will cause to
be delivered to the Agent (i) a written certification from the Title Insurance
Company confirming that appropriate instruments discharging and terminating all
Liens securing said line of credit have been recorded with the appropriate
recording offices, (ii) a written certification from counsel to the Borrower
confirming that all UCC financing statements in favor of GECC filed with respect
to the GECC Line of Credit have been terminated, and (iii) UCC lien searches of
the applicable public records disclosing no financing statements or other Liens
(other than Permitted Liens) affecting any of the Unencumbered Properties.
(S)7.13 Notices of Significant Transactions. The Borrower will notify
the Agent in writing prior to the closing of any of the following transactions
pursuant to a single transaction or a series of related transactions:
(a) The sale or transfer of one or more Real Estate Assets for
an aggregate sales price or other consideration of $10,000,000 or more.
(b) The creation of a Lien on any one or more Real Estate Assets
which, if the same were an Unencumbered Property, would have an aggregate
Unencumbered Property Value (based on the most recently ended fiscal quarter for
which financial statements have been provided pursuant to (S)7.4) of $10,000,000
or more.
(c) The creation of Indebtedness of Borrower exceeding
$10,000,000.
(d) The sale or transfer of the ownership interest of Borrower
or any of the Related Companies in any of the Related Companies or the Permitted
Joint Ventures if the aggregate consideration received by the Borrower or the
Related Companies in connection with such transaction exceeds $10,000,000.
Each notice given pursuant to this (S)7.13 shall be accompanied by a Compliance
Certificate including an updated list of Unencumbered Properties and
demonstrating in reasonable detail
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compliance, after giving effect to the proposed transaction, with the covenants
contained in (S)9.1 through (S)9.10.
(S)7.14. Further Assurance. The Borrower will cooperate with the Agent
and the Banks and execute such further instruments and documents and perform
such further acts as the Agent and the Banks shall reasonably request to carry
out to their satisfaction the transactions contemplated by this Agreement and
the other Loan Documents.
(S)7.15. Environmental Indemnification. The Borrower covenants and agrees
that it will indemnify and hold the Agent and each Bank harmless from and
against any and all claims, expense, damage, loss or liability incurred by the
Agent or any Bank (including all reasonable costs of legal representation
incurred by the Agent or any Bank, but excluding, as applicable, for the Agent
or a Bank any claim, expense, damage, loss or liability as a result of the gross
negligence or willful misconduct of the Agent or such Bank) relating to (a) any
Release or threatened Release of Hazardous Substances on any Unencumbered
Property or any Real Estate; (b) any violation of any Environmental Laws with
respect to conditions at any Unencumbered Property or any Real Estate or the
operations conducted thereon; or (c) the investigation or remediation of off-
site locations at which the Borrower or its predecessors are alleged to have
directly or indirectly disposed of Hazardous Substances. It is expressly
acknowledged by the Borrower that this covenant of indemnification shall survive
the payment of the Loans and shall inure to the benefit of the Agent and the
Banks, and their successors and assigns.
(S)7.16. Response Actions. The Borrower covenants and agrees that if any
Release or disposal of Hazardous Substances shall occur or shall have occurred
on any Unencumbered Property or any other Real Estate if the same would have a
Material Adverse Effect, the Borrower will cause the prompt containment and
removal of such Hazardous Substances and remediation of such Unencumbered
Property or Real Estate as necessary to comply with all Environmental Laws or to
preserve the value of such Unencumbered Property or Real Estate to the extent
necessary to avoid a Material Adverse Effect.
(S)7.17. Employee Benefit Plans.
(a) Representation. The Borrower and its ERISA Affiliates do not
currently maintain or contribute to any Employee Benefit Plan, Guaranteed
Pension Plan or Multiemployer Plan.
(b) Notice. The Borrower will obtain the consent of the Agent
prior to the establishment of any Employee Benefit Plan or Guaranteed Pension
Plan by the Borrower or any ERISA Affiliate.
(c) In General. Each Employee Benefit Plan maintained by the
Borrower or any ERISA Affiliate will be operated in compliance in all material
respects with the provisions of
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ERISA and, to the extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions.
(d) Terminability of Welfare Plans. With respect to each
Employee Benefit Plan maintained by the Borrower or an ERISA Affiliate which is
an employee welfare benefit plan within the meaning of (S)3(1) or (S)3(2)(B) of
ERISA, the Borrower, or the ERISA Affiliate, as the case may be, has the right
to terminate each such plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) without liability other than
liability to pay claims incurred prior to the date of termination.
(e) Multiemployer Plans. Without the consent of the Agent, the
Borrower will not enter into, maintain or contribute to, any multiemployer Plan.
(f) Unfunded or Underfunded Liabilities. The Borrower will not,
at any time, have accruing unfunded or underfunded liabilities with respect to
any Employee Benefit Plan, Guaranteed Pension Plan or Multiemployer Plan, or
permit any condition to exist under any Multiemployer Plan that would create a
withdrawal liability.
(S)7.18 Required Interest Rate Contracts. Commencing on the Effective
Date and thereafter until all Loans are paid in full and the Banks have no
further obligation to make Loans hereunder, the Borrower shall maintain in
effect Interest Rate Contracts in form reasonably satisfactory to the Agent
covering that portion of Borrower's Variable Rate Indebtedness equal to the
amount by which Borrower's Variable Rate Indebtedness exceeds 20% of Total
Assets. Except for certain Interest Rate Contracts acquired by the Borrower
prior to the date hereof and described on Schedule 7.18 which are hereby
acknowledged to satisfy this (S)7.18 to the extent of a portion of Borrower's
Variable Rate Indebtedness equal to the notional amount of said scheduled
Interest Rate Contracts, and except as may otherwise be approved by the
Requisite Banks, Interest Rate Contracts required hereby shall have the effect
of fixing the interest rate on the applicable Variable Rate Indebtedness at an
all-in rate not higher than ten percent (10%) per annum.
(S)8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower
covenants and agrees as follows, so long as any Loan or Note is outstanding or
the Banks have any obligation to make any Loans:
(S)8.1 Restrictions on Recourse Indebtedness. Except with the prior
written consent of the Requisite Banks, the Borrower will not, and the Borrower
will not permit any Guarantor, any of the Related Companies or any Permitted
Joint Venture to create, incur, assume, guarantee or become or remain liable,
contingently or otherwise, or agree not to do any of same with respect to any
Recourse Indebtedness other than:
(a) Indebtedness to the Banks arising under any of the Loan
Documents;
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(b) current liabilities of the Borrower incurred in the ordinary
course of business but not incurred through (i) the borrowing of money, or
(ii) the obtaining of credit except for credit on an open account basis
customarily extended and in fact extended in connection with normal purchases of
goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the extent
that payment therefor shall not at the time be required to be made in accordance
with the provisions of (S)7.8;
(d) Indebtedness in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which the Borrower shall
at the time in good faith be prosecuting an appeal or proceedings for review and
in respect of which a stay of execution shall have been obtained pending such
appeal or review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary course
of business;
(f) Indebtedness presently outstanding under the Subordinated
Debenture Indenture consisting of the Subordinated Debentures in the aggregate
amount of approximately $150,244,000 as of March 31,1997;
(g) Indebtedness under unsecured term notes which may be
hereafter issued by Borrower provided that the weighted average maturity date of
all such Term Notes outstanding at any time shall not be earlier than four (4)
years after the Facility Closing Date. If more than one issue or series of such
Unsecured Term Notes is outstanding at any time, the foregoing weighted average
maturity date shall be computed on an aggregate basis including all issues or
series of such notes;
(h) Indebtedness to The Prudential Insurance Company of America
in the maximum amount of $28,000,000 maturing March 15, 2012 secured by a Lien
on the Real Estate located at 7339 Industrial Boulevard, Upper Macungie
Township, Pennsylvania leased to DSC Logistics;
(i) Indebtedness to PNC Bank, National Association in the
maximum amount of $48,000,000 subject to a provision limiting the Borrower's
recourse liability to 35% of such Indebtedness maturing in January 2001 and
secured by a Lien on Real Estate in Philadelphia, Pennsylvania leased to PNC
Bank;
(j) Indebtedness to America General Life Insurance which is
recourse to the extent of $6,000,000 (out of total Indebtedness of $50,000,000)
maturing in May, 2012 secured by Real Estate in North Carolina, South Carolina
and Florida;
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(k) Recourse Indebtedness other than that described in other
paragraphs of this (S)8.1 up to a maximum principal amount of $30,000,000
outstanding at any time.
(S)8.2. Restrictions on Investments. The Borrower will not, and will not
permit Guarantor, any of the Related Companies or any Permitted Joint Venture to
make or permit to exist or to remain outstanding any Investment except
Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of purchase by
the Borrower;
(b) demand deposits, certificates of deposit, money market
accounts, bankers acceptances and time deposits of United States banks having
total assets in excess of $1,000,000,000 or repurchase obligations with a term
of not more than 7 days with such banks for underlying securities of the type
described in clause (a) of this (S)8.2;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated and
the ratings for which are not less than "P 1" if rated by Moody's Investors
Services, Inc., and not less than "A 1" if rated by Standard and Poor's and
participations in short term commercial loans made to such corporations by a
commercial bank which provides cash management services to the Borrower;
(d) Investments existing or contemplated on the date hereof and
listed on Schedule 8.2(d) hereto;
(e) Investments made in the ordinary course of the Borrower's
business, in (i) mortgages and notes receivable, (ii) Permitted Joint Ventures
(to the extent permitted by (S)8.3), (iii) Interest Rate Contracts, or
(iv) undeveloped land provided that aggregate Investments in undeveloped land
shall not at any time exceed 8% of Total Assets;
(f) Investments in Permitted Acquisitions;
(g) Investments in Permitted Developments which shall not exceed
25% of Total Assets; provided that within said aggregate limit Investments in
Permitted Developments which are not Permitted Build-to-Suit Developments shall
not exceed 15% of Total Assets.
(S)8.3. Merger, Consolidation and Other Fundamental Changes. The
Borrower will not, and will not permit the Company, any of the Related Companies
or any Permitted Joint Venture to (i) become a party to any merger or
consolidation, or (ii) agree to or effect any property acquisition or stock
acquisition (other than Permitted Acquisitions in compliance with the other
terms of this Agreement), or (iii) enter into any joint venture or invest in
any Permitted Joint Venture unless prior to such transaction the Borrower has
provided the Agent with a notice describing such transaction and, if the
reasonably expected financial impact on the Borrower as
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reflected on its balance sheet arising from all transactions described in this
(S)8.3 shall exceed 15% of Total Assets, the Borrower shall have obtained the
prior consent of the Requisite Banks provided, however, that this paragraph
shall not be applicable to mergers or transfers among the Borrower's wholly-
owned subsidiaries other than Guarantors. The Company will not acquire or own
any material assets other than its partnership interest in Borrower.
(S)8.4. Sale and Leaseback. The Borrower will not enter into any
arrangement, directly or indirectly, whereby the Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property that the Borrower intends to use for substantially the same
purpose as the property being sold or transferred. The Borrower will not permit
the Company, any of the Related Companies or any Permitted Joint Venture to
enter into any such arrangement.
(S)8.5. Compliance with Environmental Laws. The Borrower will not do,
and will not permit the Company, any of the Related Companies or any Permitted
Joint Venture to do, any of the following: (a) use any of the Real Estate or any
portion thereof as a facility for the handling, processing, storage or disposal
of Hazardous Materials except for immaterial amounts of Hazardous Materials used
in the routine maintenance and operation of the Real Estate and in compliance
with applicable law, (b) cause or permit to be located on any of the Real Estate
any underground tank or other underground storage receptacle for Hazardous
Materials except in material compliance with Environmental Laws, (c) generate
any Hazardous Materials on any of the Real Estate except in material compliance
with Environmental Laws, or (d) conduct any activity at any Real Estate or use
any Real Estate in any manner so as to cause a Release.
(S)8.6. Distributions. Borrower shall not permit the total Distributions
by it and the Company during any fiscal year to exceed 90% of Funds from
Operations for such year and shall not permit there to be more than two
consecutive fiscal quarters during which the total Distributions by Borrower and
the Company during each fiscal quarter exceed 100% of Funds from Operations for
such fiscal quarter except that such limitations may be exceeded to the extent
necessary for the Company to maintain its REIT status provided that the Company
provides the Agent with a letter from its accountants or attorneys setting forth
the basis for computation of the amount of such necessary excess Distributions.
During any period when any Default or Event of Default has occurred and is
continuing total Distributions by the Borrower and the Company will not exceed
the minimum amount necessary for the Company to maintain its REIT status.
(S)9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower covenants and
agrees as follows, so long as any Loan or Note is outstanding or any Bank has
any obligation to make any Loan:
(S)9.1. Value of All Unencumbered Properties. The Borrower will not at
any time permit the Value of All Unencumbered Properties to be less than one
hundred seventy five percent (175%) of (i) during the Initial Period, the
outstanding balance of Unsecured Indebtedness,
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excluding the portion thereof which is Subordinated Indebtedness, or (ii) after
the Initial Period, the outstanding balance of Unsecured Indebtedness.
(S)9.2. Minimum Debt Service Coverage. The Borrower will not at any time
permit the outstanding principal amount of the Loans to exceed an amount such
that: (a) the Unencumbered Net Operating Income, divided by (b) Pro Forma
Unsecured Debt Service Charges would be less than 1.5 for any fiscal quarter of
Borrower, provided, however, that with respect to fiscal quarters ending during
the Initial Period, Pro Forma Unsecured Debt Service Charges shall be computed
excluding the debt service on the Subordinated Debentures as described in clause
(b) of the definition of Pro Forma Unsecured Debt Service Charges.
(S)9.3. Total Liabilities to Total Assets. The Borrower will not at any
time permit Total Liabilities to exceed sixty percent (60%) of Total Assets.
(S)9.4. Total Liabilities minus Subordinated Indebtedness to Total
Assets. The Borrower will not at any time permit Total Liabilities minus the
outstanding balance of Subordinated Indebtedness to exceed fifty-five percent
(55%) of Total Assets.
(S)9.5. Maximum Secured Debt. The Borrower will not at any time permit
the outstanding balance of Secured Indebtedness to exceed thirty percent (30%)
of Total Assets.
(S)9.6. Minimum Tangible Net Worth. The Borrower will not at any time
permit the Tangible Net Worth of either the Borrower or the Company to be less
than $450,000,000 plus 75% of Net Offering Proceeds.
(S)9.7. Total Operating Cash Flow to Interest Expense. The Borrower will
not permit the ratio of its Total Operating Cash Flow to Interest Expense to be
less than: (i) 1.7 to 1.0 for any fiscal quarter ending during the Initial
Period or (ii) 1.85 to 1.0 for any fiscal quarter ending after the Initial
Period.
(S)9.8. Total Operating Cash Flow to Senior Interest Expense. The
Borrower will not permit the ratio of its Total Operating Cash Flow to Senior
Interest Expense to be less than 2.2 to 1.0 for any fiscal quarter.
(S)9.9. EBITDA to Fixed Charges. The Borrower will not permit the ratio
of its EBITDA to Fixed Charges to be less than: (i) 1.6 to 1.0 for any fiscal
quarter ending during the Initial Period or (ii) 1.75 to 1.0 for any fiscal
quarter ending after the Initial Period.
(S)9.10. Aggregate Occupancy Rate. The Borrower will not at any time
permit the Aggregate Occupancy Rate to be less than eighty-five percent (85%).
(S)10. CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective when each of the following conditions precedent have been satisfied:
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(S)10.1. Loan Documents. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each such document prior
to or on the Effective Date.
(S)10.2. Certified Copies of Organization Documents; Good Standing
Certificates. The Agent shall have received (i) a Certificate of the Company to
which there shall be attached complete copies of the Borrower's Limited
Partnership Agreement and its Certificate of Limited Partnership, certified as
of a recent date by the Secretary of State of Pennsylvania, (ii) Certificates of
Good Standing for the Borrower from the State of Pennsylvania and each State in
which an Unencumbered Property is located, (iii) a copy of the Company's
Declaration of Trust certified by the Maryland Secretary of State, (iv)
Certificates of Good Standing for the Company from the State of Maryland and
each State in which an Unencumbered Property is located, and (v) certificates of
good standing and certificates from the Borrower with respect to the provisions
of partnership agreements and certificates of limited partnership of the
Guarantor Subsidiaries.
(S)10.3. By-laws; Resolutions. All action on the part of the Borrower and
each Guarantor necessary for the valid execution, delivery and performance by
the Borrower and each Guarantor of this Agreement and the other Loan Documents
to which it is or is to become a party shall have been duly and effectively
taken, and evidence thereof satisfactory to the Agent shall have been provided
to the Agent. The Agent shall have received from the Company true copies of its
by-laws and the resolutions adopted by its Board of Directors authorizing the
transactions described herein, each certified by its secretary to be true and
complete and in effect on the Effective Date.
(S)10.4. Incumbency Certificate; Authorized Signers. The Agent shall have
received from the Company an incumbency certificate, dated as of the Effective
Date, signed by a duly authorized officer of the Company and giving the name and
bearing a specimen signature of each individual who shall be authorized: (a) to
sign, in the name and on behalf of the Company (in its own capacity and as
general partner on behalf of Borrower and on behalf of each Guarantor Subsidiary
which is a partnership), each of the Loan Documents to which the Borrower or any
Guarantor is or is to become a party; (b) to make Loan Requests and Conversion
Requests; and (c) to give notices and to take other action on behalf of the
Borrower under the Loan Documents.
(S)10.5. Opinions of Counsel Concerning Organization and Loan Documents.
Each of the Banks and the Agent shall have received favorable opinions from
Borrower's counsel addressed to the Banks and the Agent and dated as of the
Effective Date, in substantially the same form as the opinions delivered in
connection with the Existing Agreement, copies of which are attached hereto as
Exhibit D.
(S)10.6. Payment of Fees. The Borrower shall have paid to the Agent the
fees pursuant to (S)4.1 and shall have paid all other expenses as provided in
(S)15 hereof then outstanding.
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(S)11. CONDITIONS TO ALL BORROWINGS. The obligations of the Banks to
make any Loan, whether on or after the Effective Date, shall also be subject to
the satisfaction of the following conditions precedent:
(S)11.1. Representations True; No Event of Default; Compliance
Certificate. Each of the representations and warranties of the Borrower and the
Company contained in this Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Agreement shall
be true as of the date as of which they were made and shall also be true at and
as of the time of the making of such Loan, with the same effect as if made at
and as of that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Agreement and the other Loan Documents and
changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and except to the extent that such
representations and warranties relate expressly to an earlier date); the
Borrower shall have performed and complied with all terms and conditions herein
required to be performed by it or prior to the Drawdown Date of Such Loan; and
no Default or Event of Default shall have occurred and be continuing on the date
of any Loan Request or on the Drawdown Date of such Loan. Each of the Banks
shall have received a Compliance Certificate of the Borrower signed by a
Responsible Officer to such effect, which certificate will include, without
limitation, computations evidencing compliance with the covenants contained in
(S)9.1 through (S)9.10 hereof after giving effect to such requested Loan.
(S)11.2. No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan.
(S)11.3. Governmental Regulation. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
(S)11.4. Proceedings and Documents. All proceedings in connection with
the transactions contemplated by this Agreement, the other Loan Documents and
all other documents incident thereto shall be reasonably satisfactory in
substance and in form to the Agent, and the Banks shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Agent may reasonably request.
(S)12. EVENTS OF DEFAULT; ACCELERATION; ETC.
(S)12.1. Events of Default and Acceleration. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "Defaults") shall
occur:
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(a) the Borrower shall fail to pay any principal of the Loans
within five (5) days after the same shall become due and payable;
(b) the Borrower shall fail to pay any interest on the Loans or
any other sums due hereunder or under any of the other Loan Documents when the
same shall become due and payable;
(c) the Borrower or the Company shall fail to comply with any of
its covenants contained in (S)7.5, the first sentence of (S)7.6, (S)7.7,
(S)7.13, (S)8 or (S)9 hereof;
(d) the Borrower or any Guarantor shall fail to perform any
other term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this (S)12) for thirty (30)
days after written notice of such failure from Agent to the Borrower;
(e) any representation or warranty of the Borrower in this
Agreement or any of the other Loan Documents or in any other document or
instrument delivered pursuant to or in connection with this Agreement, shall
prove to have been false in any material respect upon the date when made or
deemed to have been made or repeated, provided, however, that with respect to
the representations and warranties of the Borrower contained in (S)6.2, (S)6.3,
(S)6.13, (S)6.18 and (S)6.21, if the condition or event making the
representation and warranty false is capable of being cured by the Borrower, no
enforcement action has been commenced against the Borrower or the applicable
Unencumbered Property on account of such condition or event nor is the
applicable Unencumbered Property subject to risk of forfeiture due to such
condition or event, and the Borrower promptly commences the cure thereof after
the Borrower's first obtaining knowledge of such condition or event, the
Borrower shall have a period of thirty (30) days after the date that the
Borrower first obtained knowledge of such condition or event during which the
Borrower may cure such condition or event (or, if such condition or event is not
reasonably capable of being cured within such thirty (30) day period, such
additional period of time as may be reasonably required in order to cure such
condition or event but in any event such period shall not exceed six (6) months
from the date that the Borrower first obtained knowledge of such condition or
event), and no Event of Default shall exist hereunder during such thirty (30)
day or additional period so long as the Borrower continuously and diligently
pursues the cure of such condition or event and the other conditions to such
cure period have not changed;
(f) the Borrower, the Company, any of the Related Companies or
any Permitted Joint Venture shall fail to pay at maturity, or within any
applicable period of grace, any Recourse Indebtedness, or shall fail to observe
or perform any material term, covenant or agreement contained in any agreement
by which it is bound, evidencing or securing Indebtedness for such period of
time as would permit (assuming the giving of appropriate notice if required) the
holder or holders thereof or of any obligations issued thereunder to accelerate
the maturity thereof, and in any event, such failure shall continue for thirty
(30) days, unless the aggregate amount of all
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such defaulted Recourse Indebtedness plus the amount of any unsatisfied
judgments described in paragraph (i) of this (S)12.1 is less than
$30,000,000.00;
(g) any of the Borrower, the Company or any Guarantor shall make
an assignment for the benefit of creditors, or admit in writing its inability to
pay or generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of any substantial part of its properties or shall
commence any case or other proceeding under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, or shall take any
action to authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other proceeding
shall be commenced against any such Person and such Person shall indicate its
approval thereof, consent thereto or acquiescence therein or any of the events
described in this paragraph shall occur with respect to any other Related
Company or any Permitted Joint Venture and such event shall have a Material
Adverse Effect;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower, the Company, or
any Guarantor bankrupt or insolvent, or approving a petition in any such case or
other proceeding, or a decree or order for relief is entered in respect of the
Borrower, the Company, or any Guarantor in an involuntary case under federal
bankruptcy laws as now or hereafter constituted or any of the events described
in this paragraph shall occur with respect to any other Related Company or any
Permitted Joint Venture and such event shall have a Material Adverse Effect;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any uninsured
final judgment against the Borrower that, with other outstanding uninsured final
judgments, undischarged, against the Borrower, the Company or any of the Related
Companies plus the amount of any defaulted Recourse Indebtedness under paragraph
(f) of this (S)12.1, exceeds in the aggregate $30,000,000.00;
(j) if any of the Loan Documents or any material provision of
any Loan Documents shall be unenforceable, cancelled, terminated, revoked or
rescinded otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Agent, or any action
at law, suit or in equity or other legal proceeding to make unenforceable,
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower or any Guarantor, or any court or any other governmental
or regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable
in accordance with the terms thereof;
(k) the Borrower or any Guarantor shall be indicted for a
federal crime, a punishment for which could include the forfeiture of any assets
of the Borrower;
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(l) the Borrower shall fail to pay, observe or perform any term,
covenant, condition or agreement contained in any agreement, document or
instrument evidencing, securing or otherwise relating to any Indebtedness of the
Borrower to any Bank (other than the Obligations) and/or relating to any
Permitted Lien (other than the Obligations) within any applicable period of
grace provided for in such agreement, document or instrument;
(m) any "Event of Default", as defined in any of the other Loan
Documents or in the Subordinated Debenture Indenture, shall occur;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Requisite Banks shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Agreement, the Notes
and the other Loan Documents to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Borrower; provided
that in the event of any Event of Default specified in (S)(S)12.1(g) or 12.1(h),
all such amounts shall become immediately due and payable automatically and
without any requirement of notice from the Agent or action by the Requisite
Banks.
(S)12.2. Termination of Commitments. If any one or more Events of Default
specified in (S)12.1(g) or (S)12.1(h) shall occur, any unused portion of the
Commitments hereunder shall forthwith terminate and the Banks shall be relieved
of all obligations to make Loans to the Borrower. If any other Event of Default
shall have occurred and be continuing, any Bank may by notice to the Borrower
terminate the unused portion of its Commitment hereunder, and upon such notice
being given such unused portion of its Commitment hereunder shall terminate
immediately and such Bank shall be relieved of all further obligations to make
Loans. No termination of such Bank's Commitment hereunder shall relieve the
Borrower of any of the Obligations or any of its existing obligations to such
Bank arising under other agreements or instruments.
(S)12.3. Remedies. In case any one or more of the Events of Default shall
have occurred, and whether or not the Requisite Banks shall have accelerated the
maturity of the Loans pursuant to (S)12.1, each Bank, if owed any amount with
respect to the Loans, may, with the consent of the Requisite Banks, direct the
Agent to proceed to protect and enforce the rights and remedies of the Agent and
the Banks under this Agreement, the Notes or any of the other Loan Documents by
suit in equity, action at law or other appropriate proceeding, whether for the
specific performance of any covenant or agreement contained in this Agreement
and the other Loan Documents or any instrument pursuant to which the Obligations
are evidenced and, if any amount shall have become due, by declaration or
otherwise, to proceed to enforce the payment thereof or any other legal or
equitable right of such Bank. No remedy herein conferred upon any Bank or the
Agent or the holder of any Note is intended to be exclusive of any other remedy
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or any other provision of law.
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(S)12.4. Distribution of Enforcement Proceeds. In the event that,
following the occurrence or during the continuance of any Default or Event of
Default, the Agent or any Bank as the case may be, receives any monies in
connection with the enforcement of any of the Loan Documents, such monies shall
be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Agent in connection with the collection of such monies by the Agent, for the
exercise, protection or enforcement by the Agent of all or any of the rights,
remedies, powers and privileges of the Agent or the Banks under this Agreement
or any of the other Loan Documents or in support of any provision of adequate
indemnity to the Agent against any taxes or liens which by law shall have, or
may have, priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or preference
as the Requisite Banks may determine; provided, however, that distribution in
respect of such Obligations shall be made among the Banks pro rata in accordance
with each Bank's respective Commitment Percentage; and provided, further, that
the Agent may in its discretion make proper allowance to take into account any
Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Requisite Banks and the Agent
of all of the obligations, and to the payment of any obligations required to be
paid pursuant to (S)9-504(1)(c) of the Uniform Commercial Code of the
Commonwealth of Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the
Borrower or to such other Persons as are legally entitled thereto.
(S)13. SETOFF. During the continuance of any Event of Default, any
deposits (general or specific, time or demand, provisional or final, regardless
of currency, maturity, or the branch of where such deposits are held) or other
sums credited by or due from any of the Banks to the Borrower and any securities
or other property of the Borrower in the possession of such Bank may be applied
to or set off against the payment of Obligations and any and all other
liabilities, direct, or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising, of the Borrower to such Bank. Each of the
Banks agrees with each other Bank that (a) if an amount to be set off is to be
applied to Indebtedness of the Borrower to such Bank, other than Indebtedness
evidenced by the Notes held by such Bank, such amount shall be applied ratably
to such other Indebtedness and to the Indebtedness evidenced by all such Notes
held by such Bank, and (b) if such Bank shall receive from the Borrower, whether
by voluntary payment, exercise of the right of setoff, counterclaim, cross
action, enforcement of the claim evidenced by the Notes held by such Bank by
proceedings against the Borrower at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar proceedings, or
otherwise, and shall retain and apply to the payment of the Note or Notes held
by such Bank any amount in
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excess of its ratable portion of the payments received by all of the Banks with
respect to the Notes held by all of the Banks, such Bank will make such
disposition and arrangements with the other Banks with respect to such excess,
either by way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in respect of the Notes held by
it its proportionate payment as contemplated by this Agreement; provided that if
all or any part of such excess payment is thereafter recovered from such Bank,
such disposition and arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.
(S)14. THE AGENT.
(S)14.1. Authorization. The Agent is authorized to take such action on
behalf of each of the Banks and to exercise all such powers as are hereunder and
under any of the other Loan Documents and any related documents delegated to the
Agent, together with such powers as are reasonably incident thereto, provided
that no duties or responsibilities not expressly assumed herein or therein shall
be implied to have been assumed by the Agent. The relationship between the Agent
and the Banks is and shall be that of agent and principal only, and nothing
contained in this Agreement or any of the other Loan Documents shall be
construed to constitute the Agent as a trustee for any Bank.
(S)14.2. Employees and Agents. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrower.
(S)14.3. No Liability. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
(S)14.4. No Representations. The Agent shall not be responsible for the
execution or validity or enforceability of this Agreement, the Notes, any of the
other Loan Documents or any instrument at any time constituting, or intended to
constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of any
such amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
the Borrower, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or
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agreements herein or in any instrument at any time constituting, or intended to
constitute, collateral security for the Notes. The Agent shall not be bound to
ascertain whether any notice, consent, waiver or request delivered to it by the
Borrower or any holder of any of the Notes shall have been duly authorized or is
true, accurate and complete. The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit worthiness or financial
condition of the Borrower. Each Bank acknowledges that it has, independently and
without reliance upon the Agent or any other Bank, and based upon such
information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank has been
independently represented by separate counsel on all matters regarding this
Agreement.
(S)14.5. Payments.
(a) A payment by the Borrower to the Agent hereunder or any of
the other Loan Documents for the account of any Bank shall constitute a payment
to such Bank subject to the pro rata rights to repayment based upon the
Commitment Percentage of each Bank. The Agent agrees promptly to distribute to
each Bank such Bank's pro rata share of payments received by the Agent for the
account of the Banks except as otherwise expressly provided herein or in any of
the other Loan Documents. Notwithstanding the foregoing, the Commitment
Reduction Paydown and certain Fixed Rate Prepayment Fees shall be distributed on
a non pro rata basis as provided in (S)2.2(b) and the commitment fees for the
quarter which included the Commitment Reduction Date shall be paid as provided
in (S)4.2.
(b) If in the opinion of the Agent the distribution of any
amount received by it in such capacity hereunder, under the Notes or under any
of the other Loan Documents might involve it in liability, it may refrain from
making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the Agent
is to be repaid, each Person to whom any such distribution shall have been made
shall either repay to the Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Bank that fails (i) to make
available to the Agent its pro rata share of any Loan or (ii) to comply with the
provisions of (S)13 with respect to making dispositions and arrangements with
the other Banks, where such Bank's share of any payment received, whether by
setoff or otherwise, is in excess of its pro rata share of such payments due and
payable to all of the Banks, in each case as, when and to the full extent
required by the provisions of this Agreement, or to adjust promptly such Bank's
outstanding principal and its pro rata Commitment Percentage as provided in
(S)2.1 hereof, shall be deemed delinquent (a "Delinquent Bank") and shall be
deemed a Delinquent Bank until such time as such delinquency is satisfied. A
Delinquent Bank shall be deemed to have assigned any and all payments due to it
from the Borrower, whether on account of outstanding Loans, interest, fees or
otherwise, to the
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remaining nondelinquent Banks for application to, and reduction of, their
respective pro rata shares of all outstanding Loans. The Delinquent Bank hereby
authorizes the Agent to distribute such payments to the nondelinquent Banks in
proportion to their respective pro rata shares of all outstanding Loans. A
Delinquent Bank shall be deemed to have satisfied in full a delinquency when and
if, as a result of application of the assigned payments to all outstanding Loans
of the nondelinquent Banks, the Banks' respective pro rata shares of all
outstanding Loans have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency.
(d) If any amount which the Agent is required to distribute to
the Banks pursuant to this (S)14.5 is actually distributed to any Bank on a
date which is later than the first Business Day following the Agent's receipt of
the corresponding payment from the Borrower, the Agent shall pay to such Bank on
demand an amount equal to the product of (i) the average computed for the period
referred to in clause (iii) below, of the weighted average interest rate paid by
the Agent for federal funds acquired by the Agent during each day included in
such period, times (ii) the amount of such late distribution to such Bank, times
(iii) a fraction, the numerator of which is the number of days or portion
thereof that elapsed from and including the second Business Day after the
Agent's receipt of such corresponding payment from the Borrower to the date on
which the amount so required to be distributed to such Bank actually is
distributed, and the denominator of which is 365.
(S)14.6. Holders of Notes. The Agent may deem and treat the payee of any
Note as the absolute owner or purchaser thereof for all purposes hereof until it
shall have been furnished in writing with a different name by such payee or by a
subsequent holder assignee or transferee.
(S)14.7. Indemnity. The Banks ratably agree hereby to indemnify and hold
harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by the Borrower as
required by (S)15), and liabilities of every nature and character arising out
of or related to this Agreement, the Notes, or any of the other Loan Documents
or the transactions contemplated or evidenced hereby or thereby, or the Agent's
actions taken hereunder or thereunder, except to the extent that any of the same
shall be directly caused by the Agent's willful misconduct or gross negligence.
(S)14.8. Agent as Bank. In its individual capacity, BankBoston shall have
the same obligations and the same rights, powers and privileges in respect to
its Commitment and the Loans made by it, and as the holder of any of the Notes
as it would have were it not also the Agent.
(S)14.9. Resignation. The Agent may resign at any time by giving sixty
(60) days, prior written notice thereof to the Banks and the Borrower. Upon any
such resignation, the Requisite Banks shall have the right to appoint a
successor Agent. Unless a Default or Event of Default shall have occurred and be
continuing, appointment of such successor Agent shall be subject to
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the reasonable approval of the Borrower. If no successor Agent shall have been
so appointed by the Requisite Banks and shall have accepted such appointment
within thirty (30) days after the giving of notice of resignation or removal of
the Borrower has disapproved or failed to approve a successor agent within such
period, then the retiring Agent may, on behalf of the Banks, appoint a successor
Agent, which shall be a financial institution having a rating of not less than
A2/P2 or its equivalent by Standard & Poor's Corporation. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations as Agent hereunder. After any
retiring Agent's resignation, the provisions of this Agreement and the other
Loan Documents 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 Agent.
(S)14.10. Notification of Defaults and Events of Default and other
Notices. Each Bank hereby agrees that, upon learning of the existence of a
Default or an Event of Default, it shall promptly notify the Agent thereof. The
Agent hereby agrees that upon receipt of any notice under this (S)14.10, or upon
it otherwise learning of the existence of a Default or an Event of Default, it
shall promptly notify the other Banks of the existence of such Default or Event
of Default. The Agent shall also promptly provide each Bank with a copy of any
notices which the Agent receives from the Borrower pursuant to (S)7.5 or
(S)7.13.
(S)14.11. Duties in the Case of Enforcement. In case one of more Events
of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent may, with the
consent of the Requisite Banks (which consents may be obtained orally in
emergency situations), and the Agent shall, if (a) so requested by the Requisite
Banks and (b) the Banks have provided to the Agent such additional indemnities
and assurances against expenses and liabilities as the Agent may reasonably
request, proceed to enforce the provisions of the Loan Documents and exercise
all or any such other legal and equitable and other rights or remedies as it may
have. The Requisite Banks may direct the Agent in writing as to the method and
the extent of any such enforcement actions, the Banks hereby agreeing to
indemnify and hold the Agent harmless from all liabilities incurred in respect
of all actions taken or omitted in accordance with such directions, provided
that the Agent need not comply with any such direction to the extent that the
Agent reasonably believes the Agent's compliance with such direction to be
unlawful or commercially unreasonable in any applicable jurisdiction.
(S)14.12. Mandatory Resignation of Agent. In the event that the Agent
enters into one or more Assignments pursuant to (S)18 having the effect of
reducing the Agent's Commitment to less than $20,000,000 (which number will be
reduced in proportion to any pro rata reduction in the Total Commitment pursuant
to (S)2.2(c)) then the Agent shall promptly so notify the Banks. Upon the
written request of any Bank whose Commitment exceeds that of the Agent, which
written request is made within thirty (30) days after the Agent's notice that
its Commitment is below such minimum level, the Agent shall be obligated to
resign pursuant to (S)14.9. Further, the Agent shall be obligated to resign
pursuant to (S)14.9 upon the written request made for cause by Banks
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whose aggregate Commitments constitute at least sixty-six percent (66%) of the
Total Commitment excluding the Commitment of the Bank which is then the Agent
hereunder.
(S)15. EXPENSES. The Borrower agrees to pay (a) the reasonable costs of
producing and reproducing this Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Banks (other than taxes based upon the Agent's or any Bank's net income),
including any recording, mortgage, documentary or intangibles taxes in
connection with the Loan Documents, or other taxes payable on or with respect to
the transactions contemplated by this Agreement, including any taxes payable by
the Agent or any of the Banks after the Facility Closing Date (the Borrower
hereby agreeing to indemnify the Banks with respect thereto), (c) all title
examination costs, appraisal fees, engineers', inspectors' and surveyors' fees,
recording costs and the reasonable fees, expenses and disbursements of the
Agent's counsel or any local counsel to the Agent incurred in connection with
the preparation, administration or interpretation of the Loan Documents and
other instruments mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (d) the fees,
costs, expenses and disbursements of the Agent incurred in connection with the
preparation, administration or interpretation of the Loan Documents and other
instruments mentioned herein including without limitation, the costs incurred by
the Agent in connection with its inspection of the Unencumbered Properties, and
the fees and disbursements of the Agent's counsel and the Borrower's legal
counsel in preparing documentation, (e) the fees, costs, expenses and
disbursements of the Agent incurred in connection with the syndication and/or
participation of the Loans, (f) all reasonable out-of-pocket expenses (including
reasonable attorneys' fees and costs, which attorneys may be employees of any
Bank or the Agent and the fees and costs of appraisers, engineers, investment
bankers, surveyors or other experts retained by the Agent or any Bank in
connection with any such enforcement proceedings) incurred by any Bank or the
Agent in connection with (i) the enforcement of or preservation of rights under
any of the Loan Documents against the Borrower or the administration thereof
after the occurrence of a Default or Event of Default (including, without
limitation, expenses incurred in any restructuring and/or "workout" of the
Loans), and (ii) any litigation, proceeding or dispute whether arising hereunder
or otherwise, in any way related to the Agent's or the Bank's relationship with
the Borrower, the Company, any Permitted Joint Venture or any of the Related
Companies, (g) all reasonable fees, expenses and disbursements of the Agent
incurred in connection with UCC searches, and (h) all costs incurred by the
Agent in the future in connection with its inspection of the Unencumbered
Properties. The covenants of this (S)15 shall survive payment or satisfaction
of payment of amounts owing with respect to the Notes.
(S)16. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Agent and the Banks and the shareholders, directors, agents,
officers, subsidiaries, and affiliates of the Agent and the Banks from and
against any and all claims, actions or causes of action and suits whether
groundless or otherwise, and from and against any and all Liabilities, losses,
settlement payments, obligations, damages and expenses of every nature and
character arising out of this Agreement or any of the other Loan Documents or
the transactions contemplated
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hereby or which otherwise arise in connection with the financing including,
without limitation except to the extent directly caused by the gross negligence
or willful misconduct of a Bank or the Agent (but such limitation on
indemnification shall only apply to the Agent or Bank being grossly negligent or
committing willful misconduct), (a) any actual or proposed use by the Borrower
of the proceeds of any of the Loans, (b) any actual or alleged infringement of
any patent, copyright, trademark, service mark or similar right of the Borrower,
(c) the Borrower entering into or performing this Agreement or any of the other
Loan Documents or (d) with respect to the Borrower and its respective
properties, the violation of any Environmental Law, the Release or threatened
Release of any Hazardous Substances or any action, suit, proceeding or
investigation brought or threatened with respect to any Hazardous Substances
(including, but not limited to claims with respect to wrongful death, personal
injury or damage to property), (e) any cost, claim liability, damage or expense
in connection with any harm the Borrower may be found to have caused in the role
of a broker, in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Banks and the Agent shall each be
entitled to select their own separate counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel. If, and to the extent that the obligations of the Borrower
under this (S)16 are unenforceable for any reason, the Borrower hereby agrees
to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The provisions of this
(S)16 shall survive the repayment of the Loans and the termination of the
obligations of the Banks hereunder and shall continue in full force and effect
as to the Banks so long as the possibility of any such claim, action, cause of
action or suit exists.
(S)17. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrower or any Guarantor pursuant hereto shall be deemed to have been
relied upon by the Banks and the Agent, notwithstanding any investigation
heretofore or hereafter made by it, and shall survive the making by the Banks of
the Loans, as herein contemplated, and shall continue in full force and effect
so long as any amount due under this Agreement or the Notes or any of the other
Loan Documents remains outstanding or the Banks have any obligation to make any
Loans. The indemnification obligations of the Borrower provided herein and the
other Loan Documents shall survive the full repayment of amounts due and the
termination of the obligations of the Banks hereunder and thereunder to the
extent provided herein and therein. All statements contained in any certificate
or other paper delivered to the Agent or any Bank at any time by or on behalf of
the Borrower pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Borrower
hereunder.
(S)18. ASSIGNMENT; PARTICIPATIONS; ETC.
(S)18.1. Conditions to Assignment by Banks. Except as provided herein,
each Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations
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under this Agreement (including all or a portion of its Commitment Percentage
and Commitment and the same portion of the Loans at the time owing to it, and
the Notes held by it); provided that (a) the Agent shall have given its prior
written consent to such assignment, which consent shall not be unreasonably
withheld or delayed, except that such consent shall not be needed with respect
to an assignment from a Bank to either one of its Affiliated Banks or to another
Bank hereunder, (b) each such assignment shall be of a portion of the assigning
Bank's rights and obligations under this Agreement relating to a specified
Commitment amount and Commitment Percentage, (c) each assignment shall be in an
amount of not less than $10,000,000 that is a whole multiple of $1,000,000,
(d) each Bank either shall assign all of its Commitment and cease to be a Bank
hereunder or shall retain, free of any such assignment, an amount of its
Commitment of not less than $10,000,000, and (e) the parties to such assignment
shall execute and deliver to the Agent, for recording in the Register (as
hereinafter defined), an Assignment and Acceptance, substantially in the form of
Exhibit E hereto (an "Assignment and Acceptance"), together with any Notes
subject to such assignment. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business Days after
the execution thereof, (i) the assignee thereunder shall be a party hereto and,
to the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder, and (ii) the assigning Bank shall, to the
extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in (S)18.3, be released from its obligations under
this Agreement. So long as no Default or Event of Default has occurred and is
continuing, Borrower's consent shall also be required for any assignment to an
Eligible Assignee which is not at the time a Bank hereunder or one of such
Bank's Affiliated Banks provided that Borrower's consent shall not be
unreasonably withheld or delayed and shall not be withheld unless Borrower
simultaneously designates an alternative Eligible Assignee (approved by the
Agent) who agrees to accept an assignment of the interest which the assigning
Bank proposed to assign and pay to such assigning Bank a sum equal to the
outstanding balance of principal and interest of Loans relating to the
Commitment Percentage being assigned. During the Initial Period each of the
Additional Commitment Banks shall retain, in addition to the $10,000,000
Commitment required by clause (d) of this (S)18.1, its Additional Commitment as
set forth in Schedule 1.2. Any Assignment by any of the Additional Commitment
Banks during the Initial Period shall be deemed to assign a portion of its Core
Commitment. Assignments by BankBoston shall be exempt from the requirement in
clause (c) above that assignments be in a Commitment amount which is a whole
multiple of $1,000,000, the requirement that the effective date be at least five
days after execution of the Assignment and Acceptance, the requirement for
Borrower's consent and the prohibition on assignment of Additional Commitments
and there shall be no registration fee with respect thereto under (S)18.3.
(S)18.2. Certain Representations and Warranties; Limitations; Covenants.
By executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows: (a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Bank makes no representation or
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warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto; (b) the assigning Bank makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or observance by
the Borrower or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of their obligations under this Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (c) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements referred to in (S)6.4 and (S)7.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (d) such assignee will,
independently and without reliance upon the assigning Bank, the Agent or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement, (e) such assignee represents and
warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Agent to take such action as "Agent" on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto; (g) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Bank; and (h) such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance. Each of the Syndication Banks shall be subject
to the provisions of this (S)18.2 to the same extent as though it were becoming
a party to this Agreement as an assignee by entering into an Assignment and
Acceptance with BankBoston effective on the Effective Date.
(S)18.3 Register. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentages of, and principal amount of the Loans owing to the Banks from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
and the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Agent a registration fee in the sum of $2,500.00. The Agent may, without action
by any other party, amend Schedules 1 and 1.2 hereof to reflect the recording of
any such assignments.
(S)18.4. New Notes. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Agent shall (a) record the information contained therein in
the Register, and (b) give prompt notice thereof to the Borrower and the Banks
(other than the assigning Bank). Within five (5) Business Days after
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receipt of such notice, the Borrower, at its own expense, shall execute and
deliver to the Agent, in exchange for each surrendered Note, a new Note to the
order of such Eligible Assignee in an amount equal to the amount assumed by such
Eligible Assignee pursuant to such Assignment and Acceptance and, if the
assigning Bank has retained some portion of its Loans hereunder, a new Note to
the order of the assigning Bank in an amount equal to the amount retained by it
hereunder. Such new Notes shall provide that they are replacements for the
surrendered Notes and that they do not constitute a novation, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the assigned
Notes. Within five (5) days of issuance of any new Notes pursuant to this
(S)18.4, the Borrower shall deliver an opinion of counsel, addressed to the
Banks and the Agent, relating to the due authorization, execution and delivery
of such new Notes and the legality, validity and binding effect thereof, and
that the Obligations evidenced by the new Notes have the same validity,
enforceability and priority as if given on the Effective Date, in form and
substance satisfactory to the Banks. The surrendered Notes shall be cancelled
and returned to the Borrower.
(S)18.5. Participations. Each Bank may sell participations to one or more
banks or other entities in a portion of such Bank's rights and obligations under
this Agreement and the other Loan Documents not to exceed forty-nine percent
(49%) of its Commitment Percentage; provided that (a) the Agent shall have given
its prior written consent to such participation, which consent shall not be
unreasonably withheld or delayed, except that any Bank may sell participations
to its Affiliated Banks without such consent, (b) each such participation, other
than participations to its Affiliated Banks or to another Bank hereunder, shall
be in an amount of not less than $10,000,000 that is a whole multiple of
$1,000,000, (c) any such sale or participation shall not affect the rights and
duties of the selling Bank hereunder to the Borrower and the Bank shall continue
to exercise all approvals, disapprovals and other functions of a Bank, (d) the
only rights granted to the participant pursuant to such participation
arrangements with respect to waivers, amendments or modifications of the Loan
Documents shall be the rights to approve the vote of the Bank as to waivers,
amendments or modifications that would reduce the principal of or the interest
rate on any Loans, extend the term or increase the amount of the Commitment of
such Bank as it relates to such participant, reduce the amount of any fees to
which such participant is entitled or extend any regularly scheduled payment
date for principal or interest, provided that all approvals affecting a Loan or
this Agreement under this clause (d) shall be by a fifty-one percent (51%) vote
of such Bank's Commitment Percentage, and (e) no participant which is not a Bank
hereunder shall have the right to grant further participations or assign its
rights, obligations or interests under such participation to other Persons
without the prior written consent of the Agent. The Agent shall promptly advise
the Borrower in writing of any such sale or participation.
(S)18.6. Pledge by Lender. Any Bank may at any time pledge all or any
portion of its interest and rights under this Agreement (including all or any
portion of its Note) to any of the twelve Federal Reserve Banks organized under
(S)4 of the Federal Reserve Act, 12 U.S.C.(S)341.
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No such pledge or the enforcement thereof shall release the pledgor Bank from
its obligations hereunder or under any of the other Loan Documents.
(S)18.7. No Assignment by Borrower. The Borrower shall not assign or
transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Banks, and any such attempted
assignment shall be null and void.
(S)18.8. Disclosure. The Borrower agrees that in addition to disclosures
made in accordance with standard banking practices any Bank may disclose
information obtained by such Bank pursuant to this Agreement to assignees or
participants and potential assignees or participants hereunder.
(S)19. NOTICES, ETC. Except as otherwise expressly provided in this
Agreement, all notices and other communications made or required to be given
pursuant to this Agreement or the Notes shall be in writing and shall be
delivered in hand, mailed by United States registered or certified first class
mail, postage prepaid, sent by overnight courier, or sent by telegraph,
telecopy, telefax or telex and confirmed by delivery via courier or postal
service, addressed as follows:
(a) if to the Borrower, at 65 Valley Stream Parkway, Malvern, PA
19355, Attention: Chief Financial Officer or at such other address for notice as
the Borrower shall last have furnished in writing to the Agent; and
(b) if to the Agent, at 100 Federal Street, Boston,
Massachusetts 02110, Attention: Real Estate Department, and to 115 Perimeter
Center Place, N.E., Suite 500, Atlanta, Georgia 30346, Attn: Lori Y. Litow, Vice
President, or such other address for notice as the Agent shall last have
furnished in writing to the Borrower.
(c) if to any Bank, at such Bank's address set forth on
Schedule 1, hereto, or such other address for notice as such Bank shall have
last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
(S)20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS
AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE
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LAWS OF SUCH COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE
OF LAW). THE BORROWER AGREES THAT ANY SUIT BY IT FOR THE ENFORCEMENT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT ONLY IN THE COURTS
OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND
BORROWER CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT FOR ANY SUIT BY
AGENT OR ANY BANK AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON
THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN (S)19. THE BORROWER HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT. IN
ADDITION TO THE COURTS OF THE COMMONWEALTH OR ANY FEDERAL COURT SITTING THEREIN,
THE AGENT OR ANY BANK MAY BRING ACTION(S) FOR ENFORCEMENT ON A NONEXCLUSIVE
BASIS WHERE ANY COLLATERAL EXISTS AND THE BORROWER CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN (S)19.
(S)21. HEADINGS. The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
(S)22. COUNTERPARTS. This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
(S)23. ENTIRE AGREEMENT. The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding of
the parties with respect to the transactions contemplated hereby. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated,
except as provided in (S)25.
(S)24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. THE BORROWER
HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY
OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT
EXPRESSLY PROHIBITED BY LAW, THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES, AND THIS WAIVER INCLUDES, WITHOUT LIMITATION,
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ANY DAMAGES PURSUANT TO M.G.L. C. 93A ET SEQ. THE BORROWER (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR ANY BANK HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH BANK WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE
AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
(S)25. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or approval
required or permitted by this Agreement may be given, and any term of this
Agreement or of any other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower of any terms of this
Agreement or such other instrument or the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Requisite Banks, and, in the case of amendments, with the written consent of the
Borrower other than amendments to schedules made in the ordinary course as
contemplated by this Agreement. Notwithstanding the foregoing, (i) the rate of
interest on and the term or amount of the Notes, (ii) the amount of the
Commitments of the Banks (other than changes in Commitments pursuant to
Assignments under (S)18 or pursuant to reductions in the Total Commitment under
(S)2.2), (iii) the amount of any fee payable to a Bank hereunder, (iv) any
provision herein or in any of the Loan Documents which expressly requires
consent of all the Banks, (v) the funding provisions of (S)2.5 and (S)2.7
hereof, (vi) the rights, duties and obligations of the Agent specified in (S)14
hereof, and (vii) the definition of Requisite Banks, may not be amended without
the written consent of each Bank affected thereby, nor may the Agent release the
Borrower or any Guarantor from its liability with respect to the Obligations,
without first obtaining the written consent of all the Banks. No waiver shall
extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of the
Agent or any Bank in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand upon the Borrower shall
entitle the Borrower to other or further notice or demand in similar or other
circumstances.
(S)26. SEVERABILITY. The provisions of this Agreement are severable,
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
(S)27. ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(i) neither the Agent nor any Bank has any fiduciary relationship with, or
fiduciary duty to, the Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents; (ii) the relationship in
connection herewith between the Agent and the Banks, on the one hand, and the
Borrower, on the other hand, is solely that of debtor and creditor and (iii) no
joint venture or
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partnership among any of the parties hereto is created hereby or by the other
Loan Documents, or otherwise exists by virtue of the Facility or the Loans.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
a sealed instrument as of the date first set forth above.
WITNESS:
LIBERTY PROPERTY TRUST
/s/ James J. Bowes By: /s/ George J. Alburger, Jr.
- ------------------------------ --------------------------------------
George J. Alburger, Jr.
Its Chief Financial Officer
LIBERTY PROPERTY LIMITED
PARTNERSHIP
By: LIBERTY PROPERTY TRUST,
its general partner
/s/ James J. Bowes By: /s/ George J. Alburger, Jr.
- ------------------------------ --------------------------------------
George J. Alburger, Jr.
Its Chief Financial Officer
BANKBOSTON, N A.
as Agent
/s/ [SIGNATURE APPEARS HERE] By: /s/ Lori Y. Litow
- ------------------------------ --------------------------------------
Lori Y. Litow
Its Vice President
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BANKBOSTON, N.A.
/s/ [SIGNATURE APPEARS HERE] By: /s/ Lori Y. Litow
- -------------------------------- -------------------------------------
Lori Y. Litow
Its Vice President
Core Commitment: $56,000,000
Additional Commitment: $34,000,000
Commitment Percentage prior to Commitment Reduction Date: 27.6923%
Commitment Percentage after Commitment Reduction Date: 24.88889%
Notice Address: BankBoston, N.A.
100 Federal Street
Boston, MA 02110
Attn: Real Estate Department
With a copy to:
BankBoston, N.A.
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, GA 30346
Attn: Lori Y. Litow, Vice President
Fax: (770)390-8434 or 391-9811
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PNC BANK, NATIONAL ASSOCIATION
/s/ [SIGNATURE APPEARS HERE] By: /s/ Robert C. Ballard
- -------------------------------- ----------------------------------
Core Commitment: $32,000,000
Additional Commitment: $18,000,000
Commitment Percentage prior to Commitment Reduction Date: 15.38462%
Commitment Percentage after Commitment Reduction Date: 14.22222%
Notice Address: PNC Bank
1600 Market Street
30th Floor
Philadelphia, PA 19103
Attn: Robert C. Ballard
Fax: (215)585-5806
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DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
Johannes Boeckmann
Vice President By: /s/ Johannes Boeckmann
- -------------------------------- --------------------------------------
Michael A. Seton
Assistant Vice President By: /s/ Michael A. Seton
- -------------------------------- --------------------------------------
Core Commitment: $27,000,000
Additional Commitment: $18,000,000
Commitment Percentage prior to Commitment Reduction Date: 13.84615%
Commitment Percentage after Commitment Reduction Date: 12%
Notice Address: Dresdner Bank AG
75 Wall Street
New York, New York 10005
Attn: Johannes Boeckmann
Fax: (212)429-2781
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KEYBANK, NATIONAL ASSOCIATION
/s/ [SIGNATURE APPEARS HERE] By: /s/ Michael Mitro
- -------------------------------- --------------------------------------
Core Commitment: $25,000,000
Additional Commitment: $15,000,000
Commitment Percentage prior to Commitment Reduction Date: 12.30769%
Commitment Percentage after Commitment Reduction Date: 11.11111%
Notice Address: KeyBank, National Association
127 Public Square
6th Floor
OH-01-270-0603
Cleveland, OH 44114-1306
Attn: Michael Mitro
Fax: (216)689-3566
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CORESTATES BANK, N.A.
By: /s/ Glenn W. Gallagher
- ------------------------------- --------------------------------------
Glenn W. Gallagher VP
Core Commitment: $25,000,000
Additional Commitment: $10,000,000
Commitment Percentage prior to Commitment Reduction Date: 10.76923%
Commitment Percentage after Commitment Reduction Date: 11.11111%
Notice Address: CoreStates Bank, N.A.
FC 1-8-10-67
1339 Chestnut Street
Philadelphia, PA 19107-7618
Attn: Glenn W. Gallagher
Fax: (215)786-6381
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CRESTAR BANK
/s/ [SIGNATURE APPEARS HERE] By: /s/ James H. Getty
- -------------------------------- --------------------------------------
James H. Getty
Core Commitment: $20,000,000
Additional Commitment: $ 5,000,000
Commitment Percentage prior to Commitment Reduction Date: 7.69231%
Commitment Percentage after Commitment Reduction Date: 8.88889%
Notice Address: Crestar Bank
Real Estate Finance Group
8th Floor
919 East Main Street
Richmond, VA 23219
Attn: James H. Getty
Fax: (804)782-7986
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SUMMIT BANK
WITNESS:
/s/ Robert F. Follet By: /s/ Amy L. Brown
- -------------------------------- --------------------------------------
Robert F. Follet Amy L. Brown
Vice President Regional Vice President
Core Commitment: $20,000,000
Additional Commitment: $0
Commitment Percentage prior to Commitment Reduction Date: 6.15385%
Commitment Percentage after Commitment Reduction Date: 8.88889%
Notice Address: Summit Bank
1800 Chapel Avenue West
Cherry Hill, NJ 08002
Attn: Amy L. Brown
Fax: (609)486-3717
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COMERICA BANK
/s/ [SIGNATURE APPEARS HERE] By: /s/ Scott Helmer
- -------------------------------- --------------------------------------
[SIGNATURE APPEARS HERE] Scott Helmer
Account Officer
Core Commitment: $20,000,000
Additional Commitment: $0
Commitment Percentage prior to Commitment Reduction Date: 6.15385%
Commitment Percentage after Commitment Reduction Date: 8.88889%
Notice Address: Comerica Bank
500 Woodward Avenue
MC:3256
Detroit, MI 48226
Attn: Scott Helmer
Fax: (313)222-9295
77
