Exhibit 10.1
SECOND AMENDED AND RESTATED LOAN AGREEMENT
among
FRANKLIN STREET PROPERTIES CORP.
ESSEX LANE ASSOCIATES LIMITED PARTNERSHIP
FSP PARK SENECA LIMITED PARTNERSHIP
FSP SANTA CLARA LIMITED PARTNERSHIP
FSP PIEDMONT CENTER LIMITED PARTNERSHIP
ONE TECHNOLOGY DRIVE LIMITED PARTNERSHIP
FSP NORTH ANDOVER OFFICE PARK LIMITED PARTNERSHIP
FSP SOUTHFIELD CENTRE LIMITED PARTNERSHIP
FSP BOLLMAN PLACE LIMITED PARTNERSHIP
FSP AUSTIN N.W. LIMITED PARTNERSHIP
FSP GATEWAY CROSSING LIMITED PARTNERSHIP
FSP LYBERTY WAY LIMITED PARTNERSHIP
FSP HILLVIEW CENTER LIMITED PARTNERSHIP
FSP SILVERSIDE PLANTATION LIMITED PARTNERSHIP
FSP TELECOM BUSINESS CENTER LIMITED PARTNERSHIP
FSP GAEL APARTMENTS LIMITED PARTNERSHIP
FSP MERRYWOOD APARTMENTS LIMITED PARTNERSHIP
FSP FOREST PARK IV NC LIMITED PARTNERSHIP
FSP GOLDENTOP TECHNOLOGY CENTER LIMITED PARTNERSHIP
FSP PARK TEN LIMITED PARTNERSHIP
FSP PROPERTY MANAGEMENT LLC
FSP INVESTMENTS LLC
FSP MONTAGUE BUSINESS CENTER CORP.
FSP ADDISON CIRCLE CORP.
FSP ROYAL RIDGE CORP.
FSP COLLINS CROSSING CORP.
and
OTHER BORROWERS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT
and
CITIZENS BANK OF MASSACHUSETTS ("Agent")
BANK OF AMERICA, N.A. ("Co-Agent")
CHEVY CHASE BANK, F.S.B.
and
Other Lenders, if any,
which may become parties to this Agreement (with
Citizens, BOA and Chevy, the "Lenders")
August 16, 2005
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TABLE OF CONTENTS
1.
BACKGROUND..........................................................1
1.1
Definitions.........................................................1
1.2
Borrower............................................................2
1.3 Use of
Proceeds.....................................................2
1.4
Facility............................................................2
1.5 Borrower
Agent......................................................2
2.
AGREEMENT TO MAKE
LOANS.............................................2
2.1 Agreement
to Make Revolving Loan....................................2
2.2
Reserved............................................................3
2.3 Purpose of
Loan.....................................................3
2.4 Requests
for Advances...............................................3
2.5 Interest
Rate and Payment Terms.....................................4
2.5.1 Borrower's
Options..................................................5
2.5.2 Selection To Be
Made................................................5
2.5.3
Notice..............................................................5
2.5.4 If No
Notice........................................................5
2.5.5 Telephonic
Notice...................................................6
2.5.6 Limits On
Options...................................................6
2.5.7 Payment and
Calculation of Interest.................................6
2.5.8
Principal...........................................................6
2.5.9
Prepayment..........................................................6
2.5.10
Maturity............................................................7
2.5.11 Method of Payment; Date of
Credit...................................7
2.5.12
Billings............................................................7
2.5.13 Default
Rate........................................................7
2.5.14 Late
Charges........................................................7
2.5.15 Voluntary Prepayment of
LIBOR Rate Loans............................7
2.5.16 Voluntary Prepayment of
LIBOR Rate Loans............................9
2.6 Additional
Provisions Related to Interest Rate Selection............9
2.6.1 Increased
Costs.....................................................9
2.6.2 Increased Capital
Costs............................................10
2.6.3
Taxes..............................................................11
2.6.4 LIBOR Rate Lending
Unlawful........................................11
2.6.5 Additional Libor
Conditions........................................12
2.6.6 Variable Rate
Advances.............................................12
2.7 The Loan
Account...................................................12
2.8
Establishment of Letter of
Credits.................................13
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2.9 Effect of
Honor of L/C's...........................................14
2.10 Additional
Provisions Relating to L/C's............................14
2.11 Overline
Facility..................................................17
3. THE
NOTES..........................................................17
4.
FEES...............................................................18
5.
JOINDER
DOCUMENTS..................................................18
6.
CONDITIONS TO
CLOSING..............................................18
6.1 Loan
Documents.....................................................18
6.2 Certified
Copies of Organization Documents.........................18
6.3
Resolutions........................................................18
6.4 Incumbency
Certificate; Authorized Signers.........................19
6.5 Legal
Opinions.....................................................19
6.6 Operating
Accounts.................................................19
6.7
Performance; No
Default............................................19
6.8
Representations and
Warranties.....................................19
6.9
Proceedings and
Documents..........................................19
6.10
Waiver.............................................................19
7.
CONDITIONS TO ALL
BORROWINGS.......................................19
7.1
Representations True; No Event of
Default..........................20
7.2 No Legal
Impediment................................................20
7.3
Governmental
Regulation............................................20
7.4
Proceedings and
Documents..........................................20
8.
REPRESENTATIONS, WARRANTIES AND
COVENANTS..........................20
8.1
Organization; Authority,
Etc.......................................20
8.2 Title to
Asset.....................................................21
8.3 Financial
Statements...............................................21
8.4 No
Material Changes,
Etc...........................................22
8.5
Franchises, Patents, Copyrights,
Etc...............................22
8.6
Litigation.........................................................22
8.7 No
Materially Adverse Contracts,
Etc...............................22
8.8 Compliance
With Other Instruments, Laws, Etc.......................22
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8.9 Tax
Status.........................................................23
8.10 No Event of
Default................................................23
8.11 Setoff,
Etc........................................................23
8.12 Certain
Transactions...............................................23
8.13
Subsidiaries.......................................................23
8.14 General
Partners...................................................23
8.15 ERISA
Plan.........................................................23
8.16
Solvency...........................................................23
8.17 The Borrowing
Base Properties......................................24
8.18 No Broker or
Finder................................................27
8.19
General............................................................27
8.20 Representations
and Warranties with Respect to the Borrowing
Base
Properties................................................27
9.
AFFIRMATIVE COVENANTS OF THE
BORROWER..............................27
9.1 Punctual
Payment...................................................28
9.2 Financial
Statements, Certificates and Information.................28
9.3
Insurance..........................................................29
9.4 Liens and
Other Charges............................................29
9.5 Inspection
of Borrowing Base Properties and Books..................29
9.6 Compliance
with Laws, Contracts, Licenses, and Permits.............30
9.7 Use of
Proceeds....................................................30
9.8
Publicity..........................................................30
9.9 Further
Assurances.................................................30
9.10
Notices............................................................30
9.11 Other
Affirmative Covenants........................................31
9.12 Control of
Borrower................................................31
9.13 Wholly Owned
Subsidiary............................................31
9.14 Maintenance of
Borrower's Properties...............................31
9.15 Acquisitions,
Dispositions and Syndication of Borrower's assets....32
9.16 Syndication
Event..................................................32
9.17 Business
Activities................................................32
10. NEGATIVE
COVENANTS OF THE BORROWER.................................32
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10.1 No Amendments,
Terminations or Waivers.............................32
10.2 Restrictions on
Indebtedness.......................................32
10.3 Restrictions on
Liens, Etc.........................................33
10.4 Restrictions on
Loans and Investments..............................33
10.5 Merger,
Consolidation, Conversion, Business Operations, and
Ownership
and Disposition of Assets............................34
10.6 Sale and
Leaseback.................................................35
10.7
Distributions......................................................35
10.8 Financial
Covenants................................................35
10.9 Other Negative
Covenants...........................................36
11. EVENTS OF
DEFAULT AND REMEDIES.....................................36
11.1 Events of
Default..................................................37
11.2 Termination of
Advances and Acceleration...........................39
11.3 Other
Remedies.....................................................40
11.4 Distribution of
Proceeds...........................................40
11.5 Power of
Attorney..................................................41
11.6
Waivers............................................................41
12.
SETOFF.............................................................41
13.
EXPENSES...........................................................42
14.
INDEMNIFICATION....................................................42
15. LIABILITY
OF THE LENDER............................................43
16. RIGHTS OF
THIRD PARTIES............................................43
17. SURVIVAL
OF COVENANTS, ETC.........................................44
18. THE AGENT
AND THE LENDERS..........................................44
18.1 Appointment of
Agent...............................................44
18.2 Administration
of Loan by Agent....................................44
18.3 Delegation of
Duties...............................................45
18.4 Exculpatory
Provisions.............................................45
18.5 Reliance by
Agent..................................................45
18.6 Notice of
Default..................................................46
18.7 Lenders' Credit
Decisions..........................................46
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18.8 Agent's
Reimbursement and Indemnification..........................46
18.9 Agent in its
Individual Capacity...................................47
18.10 Successor
Agent....................................................47
18.11 Duties in the Case of
Enforcement..................................48
18.12 Respecting Loans and
Payments......................................48
18.12.1 Procedures for
Loans...............................................48
18.12.2 Nature of Obligations of
Lenders...................................49
18.12.3 Payments to
Agent..................................................49
18.12.4 Distribution of Liquidation
Proceeds...............................49
18.12.5
Adjustments........................................................50
18.12.6
Setoff.............................................................50
18.12.7 Distribution by
Agent..............................................51
18.13 Delinquent
Lender..................................................51
18.14
Holders............................................................52
18.15 Assignment and
Participation.......................................52
18.15.1 Conditions to Assignment by
Lenders................................52
18.15.2 Certain Representations and
Warranties, Limitations, Covenants.....52
18.15.3
Register...........................................................54
18.15.4 New
Notes..........................................................54
18.15.5
Participations.....................................................54
18.16
Disclosure.........................................................55
18.17 Miscellaneous
Assignment Provisions................................55
18.18 Amendment, Waiver,
Consent, etc....................................55
18.19 Deemed Consent or
Approval.........................................56
19. No
Assignment by the
Borrower......................................56
20.
RELATIONSHIP.......................................................57
21.
NOTICES............................................................57
22. GOVERNING
LAW......................................................59
23. CONSENT TO
JURISDICTION; WAIVERS...................................59
24.
PREFERENCES........................................................59
25. RULES OF
INTERPRETATION............................................60
26.
HEADINGS...........................................................61
27.
COUNTERPARTS.......................................................61
28. ENTIRE
AGREEMENT, ETC..............................................61
29. TIME OF
THE ESSENCE................................................61
30.
SEVERABILITY.......................................................61
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Exhibits
--------
Exhibit A - Joinder Agreement
Exhibit E - Assignment and Acceptance
Exhibit F - Lenders' Commitment
Exhibit G - Note
Exhibit Borrowing Base Properties
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SCHEDULES
---------
Schedule 1 - Definitions
Schedule 2 - List of Borrowers; General
Partner of each Borrower
Schedule 3 - [Intentionally Deleted]
Schedule 4 - Loan Request
Schedule 5 - Subsidiaries
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WHEREAS,
FRANKLIN STREET PROPERTIES CORP., successor by merger to
FRANKLIN
STREET PARTNERS LIMITED PARTNERSHIP
("FSP"), a corporation organized under the
laws of the State of Maryland, together
with certain wholly owned subsidiaries
entered into a certain loan arrangement
with CITIZENS BANK OF MASSACHUSETTS, a
bank ("Lender") evidenced by, among other
documents, instruments, and
agreements, a certain Loan Agreement dated
February 23, 1999 (as amended the
"Initial Agreement"); and
WHEREAS,
the Initial Agreement was amended and restated by an Amended
and
Restated Loan Agreement dated August 18,
2003 (the "Restated Agreement");
WHEREAS,
the Restated Agreement established a $125,000,000.00 revolving
credit facility (the "Loan") in favor of
FSP and certain subsidiaries with
Citizens Bank of Massachusetts, as agent
for itself, Bank of America, N.A.,
successor by merger with Fleet National
Bank and Chevy Chase Bank, F.S.B
(collectively, the "Lenders"); and
WHEREAS,
the Lenders have agreed to the requests of Borrower (defined
below) to further increase the Loan
provided that, among other things, the
Restated Agreement be further amended and
restated;
NOW
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby
acknowledged, Borrower and Lenders hereby agree
that the Restated Agreement is hereby
amended and restated as follows:
SECOND AMENDED AND RESTATED LOAN AGREEMENT
This
Second Amended and Restated Loan Agreement (the "Loan Agreement")
is
made as of the 16th day of August, 2005, by
and among FRANKLIN STREET PROPERTIES
CORP. ("FSP") with a principal place of
business at 401 Edgewater Place, Suite
200, Wakefield, Massachusetts 01880-6210
and the additional entities which are
Wholly Owned Subsidiaries which are listed
on Part A of Schedule 2 attached
hereto (which Schedule 2 may be amended
from time to time) (collectively, the
"Borrower") organized under the laws of the
states noted therein, and CITIZENS
BANK OF MASSACHUSETTS, with a principal
place of business at 28 State Street,
Boston, Massachusetts 02109, BANK OF
AMERICA, N.A., CHEVY CHASE BANK, F.S.B.,
and the other lending institutions which
may become parties to this Agreement
pursuant to Section 18.15 hereof (the
"Lenders") and CITIZENS BANK OF
MASSACHUSETTS as agent for itself and such
other lending institutions (the
"Agent").
1. BACKGROUND
1.1 Definitions. This Agreement and other
Loan Documents utilize various defined
terms which shall have the meanings set
forth in Schedule 1 attached to this
Agreement or, if separately defined
elsewhere herein or in any other Loan
Documents, as set forth in such separate
definitions. Unless otherwise specified
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in the Loan Documents, the definitions
contained in this Agreement shall
supercede any inconsistent definitions
contained in the Note or any other Loan
Document and, subject to Section 2.8, in
the event of any inconsistencies
between this Agreement, the Note or any
other Loan Document, this Agreement
shall control.
1.2 Borrower. Each entity comprising the
Borrower is as described on Part A of
Schedule 2 organized under the laws of the
states noted therein. As of the date
hereof, the general partners of each
Borrower entity listed on Schedule 2 is set
forth on Schedule 2 attached hereto.
1.3 Use of Proceeds. Borrower has applied
to Lenders to establish a revolving
line of credit facility in the maximum
amount of $150,000,000.00, the proceeds
of which are to be used for general
corporate purposes, including property
acquisitions, renovations, expansions,
tenant improvement costs and equity
investments associated with institutional
grade income-producing properties and
to pay costs and expenses incidental to
closing the Loan.
1.4 Facility. Subject to all of the terms,
conditions and provisions of this
Loan Agreement, and of the agreements and
instruments referred to herein, each
of the Lenders agree severally to establish
the Loan up to a maximum aggregate
principal amount equal to such Lender's
Commitment and Borrower agrees to accept
and repay proceeds outstanding under the
Loan.
1.5 Borrower Agent. Each Borrower hereby
appoints FSP as agent for the Borrower
to execute, on behalf of the Borrower,
documents, instruments and agreements in
connection with the Loan, including,
without limitation, documents, instruments
and agreements required for the
administration of the Loan, receiving Loan
Advances and exercising interest rate
selections and to receive all notices
required to be given to the Borrower under
the Loan Documents, and establishing,
with Citizens Bank of Massachusetts, on the
Borrower's behalf, the various
deposit accounts required by this Agreement
and the depositing therein and
withdrawing therefrom by FSP of amounts
from time to time in accordance with the
terms and conditions of the Loan Documents.
Each Borrower shall be jointly and
severally obligated under the Loan and
shall be bound by all actions taken by
FSP in connection with the Loan. Any Loan
received by FSP shall be deemed to
have been received by each Borrower.
2. AGREEMENT TO MAKE LOANS.
2.1 Agreement to Make Revolving Loan.
Subject to the terms and conditions of
this Agreement and relying upon the
representations and warranties contained in
this Agreement and the other Loan
Documents, each of the Lenders agree to lend
to the Borrower up to a maximum aggregate
principal amount equal to such
Lender's Commitment and the Borrower may
borrow, repay and reborrow from time to
time between the Closing Date and the
Termination Date such sums as are
requested by Borrower up to a maximum
aggregate principal amount at any one time
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equal to the Loan Amount; however, any
Advances of proceeds of the Loan shall be
made by the Lenders pro rata, in accordance
with each Lender's Commitment
Percentage. Each request for an Advance of
the Loan hereunder shall constitute a
representation and warranty by the Borrower
that the conditions set forth in
ss.ss.7 and 8 have been satisfied on the
date of such request unless, and only
to the extent that, any such representation
and warranty relates specifically
and only to an earlier date in time.
2.2 Reserved.
2.3 Purpose of Loan. The Loan shall be used
by the Borrower for the following
purpose: general corporate purposes of the
Borrower, including property
acquisitions, renovations, expansions,
tenant improvement costs and equity or
debt investments associated with
institutional grade income-producing properties
and to pay the costs and expenses
incidental to closing the Loan.
2.4 Requests for Advances. (a) The Borrower
shall give to the Agent written
notice in the form of Schedule 4 hereto (or
telephonic notice confirmed in
writing in the form of Schedule 4 hereto)
of each Advance requested hereunder (a
"Loan Request") in accordance with the
interest rate selection requirements set
forth in Section 2.5.3. Each such Loan
Request shall specify (i) the principal
amount of the Advance requested, (ii) the
intended use of the proceeds of such
Advance; and (iii) the proposed Drawdown
Date of such Advance. The Borrower
agrees to accept the Advance requested from
the Agent on the proposed Drawdown
Date. Each Advance shall be a minimum
aggregate amount of $1,000,000.00 or an
integral multiple of $100,000 in excess
thereof.
(b) In the
event that the Borrower shall receive Advance(s) in excess of
the Loan Amount (and, if applicable,
exclusive of the Overline Facility) the
Borrower shall immediately repay the Loan
by an amount sufficient to reduce the
outstanding principal balance to equal or
less than the Loan Amount.
(c) The
Agent and the Lenders may rely on any request for an Advance or
financial accommodation which the Agent and
the Lenders, reasonably and in good
faith, believes to have been made by a
person duly authorized to act on behalf
of the Borrower and may decline to make any
such requested Advance or to provide
any such financial accommodation pending
the Agent and the Lenders' being
furnished with such documentation
concerning that person's authority to act as
may be satisfactory to the Agent and the
Lenders.
(d) A
request by the Borrower for any Advance or of the issuance of an
L/C
shall be irrevocable and shall constitute
certification by the Borrower that as
of the date of such request, each of the
following is true and correct:
(i) There has
been no material adverse change in the Borrower's
financial condition from the most recent financial information
furnished the Lenders pursuant to this Agreement;
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(ii) The Borrower is
in compliance with, and has not breached
any of, its covenants contained in this Agreement;
(iii) Each representation which is made herein or in any of
the Loan Documents is then true and complete as of and
as if made on the date of such request unless such
representation relates specifically and only to an
earlier date in time; and
(iv) No event has
occurred nor failed to occur which
occurrence or failure is, or with the passage of time or
giving of notice (or both) would constitute an Event of
Default (as described herein), whether or not the Agent
and the Lenders has exercised any of its rights upon
such occurrence or failure.
(e) The Borrower shall immediately become indebted to the Lenders
for
the amount of each Advance when such
Advance is made for or on behalf of the
Borrower.
(f) (i)
The Borrower may
request that the Issuing Lender issue
L/C's for the account of the Borrower subject to and in
accordance with ss.ss.2.8, 2.9 and 2.10 of this
Agreement and the other provisions of this clause (f).
Each such request shall be in such manner as may from
time to time be acceptable to the Issuing Lender, in
writing.
(ii) The Issuing
Lender, shall issue any L/C so requested by
the Borrower, provided that the aggregate Stated Amount,
following the requested issuance thereof, would not (A)
when
aggregated with all outstanding L/C's exceed the
L/C Limit, or (B) when aggregated with all outstanding
L/C's and Advances exceed Availability, and provided
that the L/C is in form satisfactory to the Issuing
Lender.
(iii) The Borrower shall execute such documentation to apply
for and support the issuance of a L/C as may be required
by the Issuing Lender.
(g) The
Lenders, without the request of the Borrower, may make an
Advance
equal to the amount which the Borrower is
obligated to pay to the Issuing Lender
or for which the Borrower or the Issuing
Lender becomes obligated on account of,
or in respect to, any L/C. Such Advance
shall be made and even if such Advance
would result in Loan Amount being exceeded.
Such action on the part of the
Lenders shall not constitute a waiver of
the Lenders' rights under Section
2.4(b) above.
2.5
Interest Rate and Payment Terms. The Loan shall be payable as
to
interest and principal in accordance with
the provisions of this Agreement and
the Note. This Agreement also provides for
interest at a Default Rate, Late
Charges and prepayment rights and fees. All
payments for the account of Lenders
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shall be applied to the respective accounts
of the Lenders in accordance with
each Lender's Commitment Percentage of the
Loan. The Agent will disburse such
payments to the Lenders on the date of
receipt thereof if received prior to
10:00 a.m. on such date and, if not, on the
next Business Day. Any and all
interest rate selection and conversion
provisions in this Agreement are to be
administered by the Agent and to be
allocated on a pro rata basis to the Note
held by each Lender based upon such
Lender's Commitment Percentage.
2.5.1 Borrower's Options. Principal amounts outstanding under
the
Loan shall
bear interest at the following rates, at Borrower's selection,
subject to
the conditions and limitations provided for in this Agreement:
(i)
Variable Rate or (ii) Adjusted Libor Rate.
2.5.2 Selection To Be Made. Borrower shall select and thereafter
may
change the
selection of, the applicable interest rate, from the
alternatives otherwise provided for in this Agreement, by giving
Agent a
Notice of
Rate Selection: (i) prior to the Loan, (ii) prior to the end of
each
Interest Period applicable to a Libor Advance, or (iii) on any
Business
Day on which Borrower desires to convert an outstanding
Variable
Rate
Advance to a Libor Advance.
2.5.3 Notice. A "Notice of Rate Selection" shall be a written
notice,
given by cable, tested telex, telecopier (with authorized
signature), or by telephone if immediately confirmed by such a
written
notice,
from an authorized representative of Borrower which: (i) is
irrevocable; (ii) is received by Agent not later than 10:00 o'clock
A.M.
Eastern
Time: (a) if an Adjusted Libor Rate is selected, at least three
(3)
Business Days but not more than five (5) Business Days prior to
the
requested
Drawdown Date or the end of the current Interest Period to
which
such
selection is to apply or (b) if a Variable Rate is selected, on
the
first day
of the Interest Period to which it applies; and (iii) as to
each
selected
interest rate option, sets forth the aggregate principal
amount(s)
to which such interest rate option(s) shall apply and the
Interest
Period(s) applicable to each Libor Advance; provided, however,
that no
portion of the outstanding principal amount of any LIBOR
Advances
may be
converted to, or continued as, LIBOR Advances when any Event of
Default
has occurred and is continuing, and no portion of the
outstanding
principal
amount of any LIBOR Advances may be converted to LIBOR Advances
of a
different duration if such LIBOR Advances relate to any Hedging
Obligations. In the absence of delivery of a
continuation/conversion
notice
with respect to any LIBOR Advances at least three Business Days
before the
last day of the then current Interest Period with respect
thereto,
such LIBOR Rate Loan shall, on such last day, automatically
convert to
a loan that accrues interest by reference to the LIBOR Rate
Loans for
a thirty (30) day period.
2.5.4 If No Notice. If Borrower fails to select an interest
rate
option in
accordance with the foregoing prior to a Loan, or prior to
three
(3)
Business Days prior to the last day of the applicable Interest
Period
of an
outstanding Libor Advance, or if a Libor Advance is not
available,
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any new
Loan made shall be deemed to be a Variable Rate Advance, and on
the last
day of the applicable Interest Period all outstanding principal
amounts
shall be deemed converted to a Variable Rate Advance.
2.5.5 Telephonic Notice. Without any way limiting Borrower's
obligation
to confirm in writing any telephonic notice, Agent may act
without
liability upon the basis of telephonic notice believed by Agent
in
good faith
to be from Borrower prior to receipt of written confirmation.
In each
case Borrower hereby waives the right to dispute Agent's record
of
the terms
of such telephonic Notice of Rate Selection in the absence of
manifest
error.
2.5.6 Limits On Options. One Selection Per Month. Each Libor
Advance
shall be
in a minimum amount of $1,000,000. At no time shall there be
outstanding a total of more than five (5) Libor Advances combined
at any
time. If
Borrower shall make more than one (1) interest rate selection
in
any thirty
(30) day period, excluding conversions of outstanding advances
made at
the end of an applicable Interest Period of any previously
outstanding Libor Advance, Agent may impose and Borrower shall pay
a
reasonable
processing fee for each such additional selection. This
limitation
on interest rate selection shall not limit the number of
Advances
which may be requested by the Borrower in any thirty (30) day
period.
2.5.7 Payment and
Calculation of Interest. All interest shall be:
(a)
Payable in arrears commencing September 1, 2005 and on the same day
of
each month
thereafter until the principal together with all interest and
other
charges payable with respect to the Loan shall be fully paid;
and
(b)
calculated on the basis of a 360 day year and the actual number
of
days
elapsed. Each change in the Prime Rate shall simultaneously
change
the
Variable Rate payable under this Agreement. Interest at the
Adjusted
Libor Rate
shall be computed from and including the first day of the
applicable
Interest Period to, but excluding, the last day thereof.
2.5.8 Principal. The entire principal balance shall be due and
payable in full at the
Termination Date.
2.5.9 Prepayment. The Loan or any portion thereof may be prepaid
in
full or in
part at any time upon three (3) Business Days, prior written
notice to
Agent without premium or penalty with respect to Variable Rate
Advances
and, with respect to Libor Advances subject to a Make-Whole
Provision
and upon payment of a LIBOR Rate Loan Prepayment Fee. Any
partial
prepayment of principal shall first be applied to any
installment
of principal
then due and then be applied to the principal due in the
reverse
order of maturity, and no such partial prepayment shall relieve
Borrower
of the obligation to pay each subsequent installment of
principal
when
due.
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<PAGE>
2.5.10 Maturity. On the Maturity Date all accrued interest,
principal
and other charges due with respect to the Loan shall be due and
payable in
full and the principal balance and such other charges, but not
unpaid
interest, shall continue to bear interest at the Default Rate
until
so
paid.
2.5.11 Method of Payment; Date of Credit. All payments of
interest,
principal
and fees shall be made in lawful money of the United States in
immediately available funds, without counterclaim or set off and
free and
clear, and
without any deduction or withholding for, any taxes or other
payments
(a) by direct charge to an account of Borrower maintained with
Agent (or
the then holder of the Loan), or (b) by wire transfer to Agent
or (c) to
such other bank or address as the Agent may designate in a
written
notice to Borrower. Payments shall be credited on the Business
Day
on which
immediately available funds are received prior to 10:00 o'clock
A.M.
Eastern Time; payments received after ten o'clock A.M. Eastern
Time
shall be
credited to the Loan on the next Business Day, payments which
are
by check,
which Agent may at its option accept or reject, or which are
not
in the
form of immediately available funds shall not be credited to
the
Loan until
such funds become immediately available to Agent, and, with
respect to
payments by check, such credit shall be provisional until the
item is
finally paid by the payer bank.
2.5.12 Billings. Agent may submit monthly billings reflecting
payments
due; however, any changes in the interest rate which occur
between
the date of billing and the due date may be reflected in the
billing
for a subsequent month. Neither the failure of Agent to submit
a
billing
nor any error in any such billing shall excuse Borrower from
the
obligation
to make full Payment of all Borrower's payment obligations when
due,
2.5.13 Default Rate. Agent shall have the option of imposing,
and
Borrower
shall pay upon billing therefor, an interest rate which is four
percent
(4%) per annum above the Variable Rate ("Default Rate"): (a)
following
any Event of Default, unless and until the Event of Default is
cured or
waived by Agent; and (b) after Maturity. Borrower's right to
select
pricing options shall cease upon the occurrence and during the
continuance of an Event of Default.
2.5.14 Late Charges. Borrower shall pay, upon billing therefor,
a
"Late
Charge" equal to five percent (5%) of the amount of any payment
of
principal,
other than principal due at Maturity, interest, or both, which
is not
paid within ten (10) days of the due date thereof. Late charges
are: (a)
payable in addition to, and not in limitation of, the Default
Rate, (b)
intended to compensate Agent and the Lenders for administrative
and
processing costs incident to late payments, (c) are not interest,
and
(d) shall
not be subject to refund or rebate or credited against any
other
amount
due.
2.5.15 Voluntary Prepayment of LIBOR Rate Loans. LIBOR Advances
maybe
prepaid upon the terms and conditions set forth herein. For
LIBOR
Advances
in connection with which the Borrower has or may incur Hedging
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<PAGE>
Obligations, additional obligations may be associated with
prepayment, in
accordance
with the terms and conditions of the applicable Hedging
Contracts.
The Borrower shall give the Agent, no later than 10:00 a.m.,
New York
City time, at least three (3) Business Days notice of any
proposed
prepayment of any LIBOR Advances, specifying the proposed date
of
payment of
such LIBOR Advances, and the principal amount to be paid. Each
partial
prepayment of the principal amount of LIBOR Advances shall be
in
an
integral multiple of $100,000.00 and accompanied by the payment of
all
charges
outstanding on such LIBOR Advances and of all accrued interest
on
the
principal repaid to the date of payment. Borrower acknowledges
that
prepayment
or acceleration of a LIBOR Advance during an Interest Period
shall
result in the Lender 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.
Therefore,
all full or partial prepayments of LIBOR Advances shall be
accompanied by, and the Borrower hereby promises to pay, on each
date a
LIBOR
Advance is prepaid or the date all sums payable hereunder become
due
and
payable prior to their stated maturity, by acceleration or
otherwise,
in
addition to all other sums then owing, an amount ("LIBOR Rate
Loan
Prepayment
Fee") determined by the Agent pursuant to the following
formula:
(a)
the then current
rate for United States Treasury securities (bills
on a discounted basis shall be converted to a bond equivalent)
with
a maturity date closest to the end of the Interest Period as to
which prepayment is made, subtracted from
(b) the Adjusted Libor Rate
applicable to the Libor Advance being
prepaid.
If the
result of this calculation is zero or a negative number, then
there
shall be
no LIBOR Rate Loan Prepayment Fee. If the result of this
calculation is a positive number, then the resulting percentage
shall be
multiplied
by:
(c)
the amount of
the Libor Advance being prepaid.
The
resulting amount shall be divided by:
(d)
360
and
multiplied by:
(e)
the number of
days remaining in the Interest Period as to which the
prepayment is being made.
Said
amount shall be reduced to present value calculated by using
the
referenced
United States Treasury securities rate and the number of days
remaining
on the Interest Period for the Libor Advance being prepaid.
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<PAGE>
The
resulting amount of these calculations shall be the LIBOR
Advance
Prepayment
Fee.
2.5.16 Make Whole Provision. In addition to the LIBOR Rate Loan
Prepayment
Fee, the Borrower agrees to reimburse the Lenders (without
duplication) for any increase in the cost to the Lenders, or
reduction in
the amount
of any sum receivable by the Lenders, in respect, or as a
result
of:
(a) any conversion or repayment or prepayment of the principal
amount of
any Libor Advances on a date other than the scheduled last day
of the
Interest Period applicable thereto, whether voluntary or
otherwise;
(b) any loans not being made as Libor Advances in accordance
with
the
borrowing request thereof;
(c) any Libor Advances not being continued as, or converted
into,
LIBOR
Advances in accordance with the continuation/conversion notice
thereof,
or
(d) any costs associated with marking to market any Hedging
Obligations that (in the reasonable determination of the Agent)
are
required
to be terminated as a result of any conversion, repayment or
prepayment
of the principal amount of any LIBOR Advances on a date other
than the
scheduled last day of the Interest Period applicable thereto,
whether
voluntary or otherwise;
The Agent shall promptly notify the
Borrower in writing of the occurrence of any
such event, such notice to state, in
reasonable detail, the reasons therefore
and the additional amount required fully to
compensate the Agent for such
increased cost or reduced amount. Such
additional amounts shall be payable by
the Borrower to the Agent within five
Business Days of its receipt of such
notice, and such notice shall, in the
absence of manifest error, be conclusive
and binding on the Borrower. The Borrower
understands, agrees and acknowledges
the following: (i) the Agent does not have
any obligation to purchase, sell
and/or match funds in connection with the
use of LIBOR Rate as a basis for
calculating the rate of interest on a LIBOR
Advance, (ii) the LIBOR Rate may be
used merely as a reference in determining
such rate, and (iii) the Borrower has
accepted the LIBOR Rate as a reasonable and
fair basis for calculating such
rate, the LIBOR Rate Prepayment Fee, and
other funding losses incurred by the
Lenders. Borrower further agrees to pay the
LIBOR Rate Prepayment Fee and other
funding losses, if any, whether or not the
Lenders elect to purchase, sell
and/or match funds.
2.6
Additional Provisions Related to Interest Rate Selection.
2.6.1 Increased Costs. If on or after the date hereof the
adoption
of any
applicable law, rule or regulation or guideline (whether or not
having the
force of law), or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority,
-9-
<PAGE>
central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Lenders with any
request or
directive
(whether or not having the force of law) of any such authority,
central
bank or comparable agency:
(a) shall subject the Lenders to any tax, duty or other charge
with
respect to its LIBOR Advances or its obligation to make LIBOR
Advances, or shall change the basis of taxation of payments to
the
Bank of the principal of or interest on its LIBOR Advances or
any
other amounts due under this agreement in respect of its LIBOR
Advances or its obligation to make LIBOR Advances (except for
the
introduction of, or change in the rate of, tax on the overall
net
income of the Lenders or franchise taxes, imposed by the
jurisdiction (or any political subdivision or taxing authority
thereof) under the laws of which the Lenders are organized or
in
which the Lenders' principal executive offices are located); or
(b) shall impose, modify or deem applicable any reserve,
special
deposit or similar requirement (including, without limitation,
any
such requirement imposed by the Board of Governors of the
Federal
Reserve System of the United States) against assets of,
deposits
with or for the account of, or credit extended by, the Lenders
or
shall impose on the Lenders or on the London interbank market
any
other condition affecting its LIBOR Advances or its obligation
to
make LIBOR Advances;
and the result of any of the foregoing is to increase the cost
to
the
Lenders of making or maintaining any LIBOR Advances, or to reduce
the
amount of
any sum received or receivable by the Lenders under this
Agreement
with respect thereto, by an amount reasonably deemed by the
Lenders to be
material, then, within 15 days after written demand by the
Agent
(which demand shall specify in detail the reasons for same),
the
Borrower
shall pay to the Lenders such additional amount or amounts as
will
compensate the Lenders for such increased cost or reduction.
2.6.2 Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation,
reinterpretation or
phase-in
of, any law or regulation, directive, guideline, decision or
request
(whether or not having the force of law) of any court, central
bank,
regulator or other governmental authority affects or would
affect
the amount
of capital required or expected to be maintained by the Lender,
or person controlling the
Lender, and a Lender determines (in its sole and
absolute
discretion) that the rate of return on its or such controlling
person's
capital as a consequence of its commitments or the loans made
by
the Lender
is reduced to a level below that which the Lender or such
controlling person could have achieved but for the occurrence of
any such
circumstance, then, in any such case upon written notice from time
to time
by the
Lender to the Borrower, the Borrower shall promptly pay directly
to
the Lender
additional amounts sufficient to compensate the Lenders or such
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<PAGE>
controlling person for such reduction in rate of return. A
statement of
the Lenders as to any such
additional amount or amounts (including
calculations thereof in reasonable detail) shall, in the absence
of
manifest
error, be conclusive and binding on the Borrower. In
determining
such
amount, the Lender may use any method of averaging and
attribution
that it
(in its sole and absolute discretion) shall deem applicable.
2.6.3 Taxes. All payments by the Borrower of principal of, and
interest
on, the LIBOR Advances and all other amounts payable hereunder
shall be
made free and clear of and without deduction for any present or
future
income, excise, stamp or franchise taxes and other taxes, fees,
duties,
withholdings or other charges of any nature whatsoever imposed
by
any taxing
authority, but excluding franchise taxes and taxes imposed on
or
measured by the Lender's net income or receipts (such
non-excluded
items
being called "Taxes"). In the event that any withholding or
deduction
from any payment to be made by the Borrower hereunder is
required
in respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Borrower will
(a) pay directly to the relevant authority the full amount
required
to be so
withheld or deducted;
(b) promptly forward to the Lender an official receipt or other
documentation satisfactory to the Lender evidencing such payment to
such
authority;
and
(c) pay to the Lender such additional amount or amounts as is
necessary
to ensure that the net amount actually received by the Lender
will equal
the full amount the Lender would have received had no such
withholding or deduction been required.
Moreover,
if any Taxes are directly asserted against the Lender with
respect to
any payment received by the Lender hereunder, the Lender may
pay such
Taxes and the Borrower will promptly pay such additional amount
(including
any penalties, interest or expenses) as is necessary in order
that the
net amount received by the Lender after the payment of such
Taxes
(including
any Taxes on such additional amount) shall equal the amount the
Lender
would have received had not such Taxes been asserted.
If the
Borrower fails to pay any Taxes when due to the appropriate
taxing
authority
or fails to remit to the Lender the required receipts or other
required
documentary evidence, the Borrower shall indemnify the Lender
for
any
incremental Taxes, interest or penalties that may become payable
by
the Lender
as a result of any such failure.
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<PAGE>
2.6.4 Libor Rate Lending Unlawful. If the Agent shall determine
(which
determination shall, upon notice thereof to the Borrower be
conclusive
and binding on the Borrower) that the introduction of or any
change in
or in the interpretation of any law, rule, regulation or
guideline,
(whether or not having the force of law) makes it unlawful, or
any
central bank or other governmental authority asserts that it is
unlawful,
for the Bank to make, continue or maintain any Libor Advance
as,
or to
convert any loan into, a Libor Advance of a certain duration,
the
obligations of the Bank to make, continue, maintain or convert into
any
such Libor
Advances shall, upon such determination, forthwith be suspended
until the
Agent shall notify the Borrower that the circumstances causing
such
suspension no longer exist, and all Libor Advances of such type
shall
automatically convert into Variable Rate Loans at the end of the
then
current
Interest Periods with respect thereto or sooner, if required by
such law
or assertion.
2.6.5 Additional Libor Conditions. The selection by Borrower of
an
Adjusted
Libor Rate and the maintenance of the Loan at such rate shall
be
subject to
the following additional terms and conditions:
(i) Substitute Rate. If the Agent shall have determined that
(a) US dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Agent in the
London interbank market;
(b) by reason of circumstances affecting the Agent in the
London interbank, adequate means do not exist for ascertaining
the
Libor Rate applicable hereunder to Libor Advances of any
duration,
or
(c) Libor no longer adequately reflects the Lender's cost of
funding loans,
then, upon
notice from the Agent to the Borrower, the obligations of the
Lenders
under Section 2.5 to make or continue any loans as, or to
convert
any loans
into, Libor Advances of such duration shall forthwith be
suspended
until the Agent shall notify the Borrower that the
circumstances
causing
such suspension no longer exist.
2.6.6 Variable Rate Advances. Each Variable Rate Advance shall
continue as a Variable Rate
Advance until the Maturity Date of the Loan,
unless
sooner converted, in whole or in part, to a Libor Advance,
subject
to the
limitations and conditions set forth in this Agreement.
2.7 The
Loan Account. (a) An account (the "Loan Account") shall be
opened
on the
books of the Agent, in which Loan Account a record may be kept
of
all
Advances made by the Lenders to the Borrower under or pursuant to
this
Agreement
and of all payments thereon.
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<PAGE>
(b)
The Agent may
also keep a record (either in the Loan Account or
elsewhere, as the Agent may from time to time elect) of all
interest, fees, service charges, costs, expenses, and other
debits
owed the Agent and/or the Lenders (including the Issuing Lender)
on
account of the Obligations and of all credits against such
amounts
so owed.
(c)
All credits
against the Obligations shall be conditional upon final
payment to the Lender of the items giving rise to such credits.
The
amount of any item credited against the Obligations which is
charged
back against the Lender for any reason or is not so paid shall be
an
Obligation and shall be added to the Loan Account, whether or
not
the item so charged back or not so paid is returned.
(d)
Except as
otherwise provided herein, all fees, service charges,
costs, and expenses for which the Borrower is obligated
hereunder
are payable thirty (30) days after the invoice date. The
Lenders,
without the request of the Borrower, may make an Advance of any
interest, fee, service charge, or other payment to which the
Agent
and/or the Lenders are entitled from the Borrower pursuant
hereto
and may charge the same to the Loan Account notwithstanding
that
such amount so advanced may result in Availability's being
exceeded.
Such action on the part of the Lenders shall not constitute a
waiver
of the Lenders' rights under Section 2.4(b), above. Any amount
which
is added to the principal balance of the Loan Account as provided
in
this subsection shall bear interest at the interest rate
applicable
from time to time to the unpaid principal balance of the Loan
Account.
(e)
Any statement
rendered by the Agent to the Borrower concerning the
Obligations shall be considered correct and accepted by the
Borrower
and shall be conclusively binding upon the Borrower unless the
Borrower provides the Agent with written objection thereto
within
thirty (30) days from the mailing of such statement, which
written
objection shall indicate, with particularity, the reason for
such
objection. The Loan Account and the Agent's books and records
concerning the loan arrangement contemplated herein and the
Obligations shall be prima facie evidence of the items
described
therein.
2.8 Establishment of Letter of Credits. (a) Upon the written
request
of the Borrower, the Issuing Lender agrees
to cause the issuance of L/C's on
behalf of a Borrower as provided herein.
The Borrower may request issuance of
L/C's in such manner as may from time to
time be reasonably acceptable to the
Issuing Lender. The Borrower shall execute
and deliver to the Issuing Lender
such further documents and instruments in
connection with any L/C, as the
Issuing Lender, in accordance with the
Issuing Lender's then customary practices
with respect to similar facilities, may
reasonably request including, without
limitation, the Issuing Lender's standard
letter of credit agreements (the "L/C
Agreement"). In the event of any
inconsistency between the terms of the L/C
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<PAGE>
Agreement and this Agreement the terms and
conditions of the L/C Agreement shall
control. By the issuance of a L/C (or an
amendment to the L/C increasing the
Stated Amount thereof) by the Issuing
Lender, and without any further action on
the part of the Issuing Lender or the
Lenders, the Issuing Lender hereby grants
to each Lender, and each Lender hereby
acquires from the Issuing Lender, an
undivided interest and participation in the
L/C equal to such Lender's
Commitment Percentage of the aggregate
amount available to be drawn under the
L/C. Each Lender acknowledges and agrees
that its obligation to acquire
participations pursuant to this section in
respect of the L/C is absolute and
unconditional and shall not be affected by
any circumstance whatsoever,
including any amendment, renewal or
extension of the L/C or the occurrence and
continuance of a Default or Event of
Default or reduction or termination of the
Commitment, and that each such payment
shall be made without any offset,
abatement, withholding or reduction
whatsoever. Notwithstanding anything to the
contrary contained in this Section 2.8(a),
however, unless the Lenders'
expressly agree to the contrary, the
Lenders shall have no obligation to accept
or acquire, and shall not be deemed to have
accepted or acquired, any interest
or participation pursuant to this section
in respect of any L/C (or any
amendment increasing the Stated Amount of
an L/C) if such L/C is issued (or such
amendment is entered into) by the Issuing
Lender after the Termination Date, or
if the terms of the L/C or corresponding
L/C Agreement (or any such amendment
thereto) is administered or enforced in a
manner inconsistent with any of the
terms of this Agreement
(b) No L/C
shall have an expiry date which is later than thirty (30) days
prior to the Maturity Date.
2.9 Effect of Honor of L/C's . The Borrower
shall reimburse the Issuing Lender
for the amount of any honored L/C. Any such
honoring which is not so reimbursed
on the Business Day when so honored shall
constitute an Advance.
2.10. Additional Provisions Relating to
L/C's. (a) The obligations of the
Borrower with respect to L/C's shall be
absolute and unconditional. The
obligations of the Borrower with respect to
L/C's shall rank pari passu with the
obligations of the Borrower to repay all
other Obligations. The Issuing Lender's
rights, powers, privileges and immunities
specified in or arising under this
Agreement are in addition to any hereafter
created or arising, whether by
statute or rule of law or contract.
(b)
The Borrower
will
(i) promptly
examine the copy of any L/C (and any amendments
thereof) sent to it by the Issuing Lender;
(ii) promptly examine
all instruments and documents delivered to it
from time to time by the Issuing Lender; and
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<PAGE>
(iii) within two (2) Business Days of receipt thereof, provide
the
Issuing Lender with written notice of any irregularity or
claim of non-compliance with the instructions of such person
or entity.
The Borrower is conclusively deemed to have
waived any such claim against the
Issuing Lender and the Lenders and their
correspondents unless such notice is so
timely given.
(c)
None of the
Issuing Lender, the Issuing Lender's correspondents or
any advising, negotiating, or paying bank with respect to any
L/C,
shall be responsible in any way for:
(i) performance
by any beneficiary under any L/C or payee under
any L/C of
that beneficiary's or payee's obligations to the
Borrower; or
(ii) the form,
sufficiency, correctness, genuineness, authority of
any person signing; falsification; or the legal effect of; any
documents called for under any L/C if (with respect to the
foregoing) such documents on their face are conforming.
(d)
The Issuing
Lender may honor, as complying with the terms of any L/C
and of any drawing thereunder, any drafts or other documents
otherwise in order, but signed or issued by an administrator,
executor, conservator, trustee in bankruptcy, debtor in
possession,
assignee for the benefit of creditors, liquidator, receiver, or
other legal representative of the Person authorized under such
L/C
to draw or issue such drafts or other documents.
(e)
Unless otherwise
agreed to, in the particular instance, the Borrower
hereby authorizes the Issuing Lender to (i) select an advising
bank,
if any; (ii) select a paying bank, if any; and (iii) select a
negotiating bank.
(f)
The Issuing
Lender shall have discharged its obligations under any
L/C which, or the drawing under which, includes payment
instructions, by the initiation of the method of payment called
for
in, and in accordance with, such instructions (or by any other
commercially reasonable and comparable method). The Issuing
Lender
does not assume any responsibility for any inaccuracy,
interruption,
error, or delay in transmission or delivery by post, telegraph
or
cable, or for any inaccuracy of translation.
(g)
The Issuing
Lender's rights, powers, privileges and immunities
specified in or arising under this Agreement are in addition to
any
hereafter created or arising, whether by statute or rule of law
or
contract.
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<PAGE>
(h)
Except to the
extent otherwise expressly provided hereunder or
agreed to in writing by the Issuing Lender, and the Borrower,
the
L/C will be governed by the Uniform Customs and Practice for
Documentary Credits, International Chamber of Commerce,
Publication
No. 500, and any subsequent revisions thereof.
(i)
If any change in
any law, executive order or regulation, or any
directive of any
administrative or governmental authority (whether
or not having the force of law), or in the interpretation thereof
by
any court or administrative or governmental authority charged
with
the administration thereof, shall either:
(i) impose,
modify or deem applicable any reserve, special deposit
or similar requirements against L/C's hereafter caused to be
issued by the Issuing Lender or with respect to which the
Issuing Lender has an obligation to lend to fund drawings
thereunder; or
(ii) impose on any
Issuing Lender any other condition or
requirements relating to any such L/C's;
and the result of any event referred to in
clause (i) or (ii), above, shall be
to increase the cost to the Issuing Lender
of issuing or maintaining any L/C,
then, upon demand by the Issuing Lender
made within six (6) months of the
occurrence of any event referred to in
clause (i) or (ii) above, and delivery by
the Issuing Lender to the Borrower of a
certificate of an officer of the Lender
describing such change in law, executive
order, regulation, directive, or
interpretation thereof, its effect on the
Issuing Lender, and the basis for
determining such increased costs and their
allocation, the Borrower within five
(5) Business Days after receipt of such
notice shall pay to the Issuing Lender,
from time to time as specified by the
Issuing Lender, such amounts as shall be
sufficient to compensate the Issuing Lender
for such increased cost. The Issuing
Lender's determination of costs incurred
under clause (i) or (ii) above, shall
be conclusive and binding on the Borrower
in the absence of manifest error.
(j)
The obligations
of the Borrower under the within Agreement with
respect to L/C's are absolute, unconditional, and irrevocable
and
shall be performed strictly in accordance with the terms hereof
under all circumstances, whatsoever including, without
limitation,
the following:
(i) Any lack of
validity or enforceability or restriction,
restraint, or stay in the enforcement of the within Agreement,
any L/C or any other agreement or instrument relating thereto.
(ii) Any amendment or
waiver of, or consent to the departure from,
all or any of the above.
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<PAGE>
(iii) The existence of any claim, set-off, defense, or other
right
which the Borrower may have at any time against the
beneficiary of the L/C.
(iv) Any honoring of a
drawing under any L/C, which drawing was
nonconforming on account of minor nonsubstantive variances
from the requirements of the subject L/C, and not the result
of Issuing Bank's gross negligence.
2.11. Overline Facility. During the term of
the Loan the Borrower may purchase a
property whose purchase price exceeds the
Availability. Upon written request by
the Borrower, and subject to the
requirements of this Agreement, the Agent shall
have the right (but not the obligation) to
lend up to an additional Fifty
Million ($50,000,000.00) Dollars ("Overline
Loan") to the Borrower as a
temporary overline facility for a term to
be mutually agreed to by the Borrower
and the Lenders participating in the
Overline Loan (the "Overline Facility").
Upon receipt of a written request from the
Borrower for an Overline Loan, the
Agent shall notify each Lender in writing
and offer the Lenders the opportunity
to share in the Overline Loan in an amount
equal to such electing Lenders
relative Commitment Percentage of the
requested amount of the Overline Loan.
Each Lender shall have up to thirty (30)
Business Days to obtain any necessary
internal approvals to commit to Advance
under the Overline Loan. Failure to
respond during such thirty (30) day period
shall be deemed a rejection by such
Lender of the opportunity to participate in
the requested Advance under the
Overline Facility. It is understood that
the Lenders have not committed at this
time to provide an Overline Loan and that
no commitment shall exist until the
electing Lenders obtain all necessary
approvals and the Borrower complies with
all reasonable conditions precedent
established by the electing Lenders. The
Overline Facility shall bear interest,
result in Transaction Fees, and be repaid
on the same terms as the Revolving Facility
under the Loan Agreement and shall
be evidenced by new notes substantially in
the form of the Notes, and shall be
deemed a Note hereunder, to be executed by
the Borrower prior to the Advance
under the Overline Facility, in the amount
of the requested Overline Loan
payable to the Lenders who have agreed to
participate in such Overline Loan. The
Overline Facility shall be repaid prior to
the repayment of the Revolving
Facility. The Lenders agree to the Overline
Facility being made available by the
other Lenders participating in the Overline
Facility pursuant to the terms
hereof.
3. THE NOTES. The obligation of the
Borrower to pay the Loan Amount or, if less,
the aggregate unpaid principal amount of
all Advances made by the Lenders
hereunder plus accrued interest thereon,
shall be evidenced by Notes and payable
in accordance therewith. In the event any
of the Notes are lost, destroyed or
mutilated at any time prior to payment in
full of the indebtedness evidenced
thereby, the Borrower shall execute and
deliver to the applicable Lender a new
note substantially in the form of the Note
and the applicable Lender shall
execute and deliver to Borrower an
affidavit and indemnification reasonably
acceptable to Borrower with respect to such
lost Note.
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4. FEES. The Borrower agrees to pay to the
Agent on behalf of the Lenders the
following fees:
(a)
The Borrower
shall pay to the Agent on behalf of the Lenders an
annual transaction fee equal to the greater of: (i) Four
Hundred
Twenty Thousand ($420,000.00) Dollars or (ii) twenty-five (25)
basis
points of each Advance under the Revolving Facility and the
Overline
Facility during the applicable year (the "Transaction Fee"),
such
Transaction Fee to be paid at the time of each Advance made
(including any Advance made on account of a draw under a L/C)
under
the Loan with an annual reconciliation of the amount due on
each
anniversary date of this Agreement.
(b)
At the time of
the issuance of any L/C, the Borrower shall pay to
the Agent on behalf of the Lenders an annual letter of credit
fee
equal to 1.25% of the Stated Amount of such L/C, or pro rated if
the
L/C is issued for a period of less than twelve (12) months (the
"L/C
Fee").
5. JOINDER DOCUMENTS. At the time of a
Acquisition, such Wholly Owned
Subsidiary, which has become a Wholly Owned
Subsidiary in connection with such
Acquisition, shall execute the Joinder
Documents so as to become a Borrower
under this Agreement and shall be added as
a maker under the Note. From and
after the date of the execution of such
Joinder Documents, such entities shall
be considered a "Borrower" and subject to
all of the terms and conditions
hereof.
6. CONDITIONS TO CLOSING. The obligation of
the Lenders to make the initial Loan
shall be subject to the satisfaction of the
following conditions precedent on or
before the Closing Date.
6.1 Loan Documents. Each of the Loan
Documents shall have been duly executed and
delivered by the respective parties
thereto. Each of the Loan Documents shall be
in full force and effect and shall be in
form and substance satisfactory to the
Lenders.
6.2 Certified Copies of Organization
Documents. The Agent shall have received
from the Borrower a certified copy of its
Organization Documents as in effect on
such date of certification, such
Organizational Documents to be in form and
substance reasonably satisfactory to the
Lenders.
6.3 Resolutions. All action necessary for
the valid execution, delivery and
performance by the Borrower 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
Lenders shall have been provided to the
Lenders. The Agent shall have received from
each such Person true copies of the
resolutions authorizing the transactions
described herein, each certified as of
a recent date to be true and complete.
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6.4 Incumbency Certificate; Authorized
Signers. The Agent shall have received
from the Borrower an incumbency
certificate, dated as of the Closing Date,
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 such Person each of the
Loan Documents to which such Person is or
is to become a party; and (b) to give
notices and to take other action on its
behalf under the Loan Documents.
6.5 Legal Opinions. The Lenders shall have
received a favorable opinion or
opinions in form and substance satisfactory
to the Agent and the Agent's
counsel, addressed to the Agent and the
Lenders and dated as of the Closing
Date, from counsel to the Borrower
acceptable to the Agent, as to such matters
as the Lender shall reasonably request,
including, without limitation, the due
execution and authorization of all Loan
Documents and the enforceability of this
Agreement and the Notes.
6.6 Operating Accounts. The Borrower shall
have established and will maintain
with the Agent and/or Co-Agent, Chevy or
other Lenders operating accounts for
those Borrowers owning properties which are
part of the Borrowing Base
Properties and are located within the
Commonwealth of Massachusetts
(collectively, the "Operating Accounts")
The term Operating Accounts shall
specifically exclude any trust accounts in
the name of such Borrowers.
6.7 Performance; No Default. The Borrower
shall have performed and complied with
all terms and conditions herein required to
be performed or complied with by it
or there shall exist no Default or Event of
Default.
6.8 Representations and Warranties. Without
limiting the provisions set forth in
Sections 6.1 and 8.12, the representations
of warranties made by the Borrower in
the Loan Documents or otherwise made by or
on behalf of the Borrower in
connection therewith or after the date
thereof shall have been true and correct
in all respects when made and shall be true
and correct in all respects on the
Closing Date unless such representations
and warranties relate specifically and
only to an earlier date in time.
6.9 Proceedings and Documents. All
proceedings accounts in the name of such
Borrower entities in connection with the
transactions contemplated by this
Agreement and the other Loan Documents
shall be satisfactory to the Agent and
the Agent's counsel in form and substance,
and the Agent shall have received all
information and such counterpart originals
or certified copies of such documents
and such other certificates, opinions or
documents as the Agent and the Agent's
counsel may reasonably require.
6.10 Waiver. Any waiver by the Agent of any
of the conditions precedent
contained herein for the closing of the
Loan shall not be deemed to be a waiver
by the Agent of any other obligation of the
Borrower hereunder.
7. CONDITIONS TO ALL BORROWINGS. The
obligations of the Lenders to make the Loan
or any Advance, whether on or after the
Closing Date, shall also be subject to
the satisfaction of the following
conditions precedent:
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7.1 Representations True; No Event of
Default. Subject to Sections 6.1 and 8.20,
each of the representations and warranties
of the Borrower 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) and no Default or Event of
Default shall have occurred and be
continuing. The Agent on behalf of the
Lenders shall have received a certificate
of the Borrower signed by an
authorized officer of the Borrower to such
effect.
7.2 No Legal Impediment. No change shall
have occurred in any law or regulations
thereunder or interpretations thereof that
in the reasonable opinion of the
Agent would make it illegal for the Lenders
to make such Loan.
7.3 Governmental Regulation. With respect
to any Libor Advance, the Lenders
shall have received such statements in
substance and form reasonably
satisfactory to the Lenders as the Lenders
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.
7.4 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 its counsel,
and the Agent and such counsel shall
have received all information and such
counterpart originals or certified or
other copies of such documents as the Agent
may reasonably request.
8. REPRESENTATIONS, WARRANTIES AND
COVENANTS. The Borrower represents, warrants,
and covenants to the Lenders as
follows:
8.1 Organization; Authority,
Etc.
(a)
Organization;
Good Standing. Each of the entities comprising the
Borrower is a limited partnership, limited liability company,
or
corporation, as the case may be, duly organized under the laws
of
its state of organization pursuant to each Person's respective
Organizational Documents, and is, and will at all times be,
validly
existing and in good standing under the laws of such State. The
Borrower is, and will at all times be, duly organized and is,
and
will at all times be, validly existing, in good standing, and
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qualified to do business in each jurisdiction where required
except
where failure to so qualify would not have a material adverse
affect
on the Borrowing Base Properties. Each of the entities
comprising
the Borrower has, and will at all times have, all requisite power
to
own its property and conduct its business as now conducted and
as
presently contemplated.
(b)
Authorization.
The execution, delivery and performance of this
Agreement and the other Loan Documents to which Borrower is or is
to
become a Person and the transactions contemplated hereby and
thereby
(i) are within the authority of such Person, (ii) have been
duly
authorized by all necessary proceedings on the part of such
Person,
(iii) do not conflict with or result in any breach or
contravention
of any provision of any other agreement binding upon such Person
or
any provision of law, statute, rule or regulation to which such
Person is
subject or any judgment, order, writ, injunction, license
or permit applicable to such Person, (iv) do not conflict with
any
provision of the Organizational Documents of such Person, and (v)
do
not require the approval or consent of, or filing with
creditors,
trustees for creditors or shareholders of, or other holders,
directly or indirectly, of interests in, such Person or the
approval
or consent or filing with any governmental agency or authority
other
than those approvals or consents already obtained.
(c)
Enforceability.
The execution and delivery of this Agreement and the
other Loan Documents, to which each Borrower is or is to become
a
Person will result in valid and legally binding obligations of
such
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 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.
8.2 Title to Asset. The Borrower owns all
of the assets reflected in the
financial statements of the Borrower as at
the Balance Sheet Date or acquired
since that date free from all encumbrances
except for Permitted Liens (except
property and assets sold or otherwise
disposed of in the ordinary course of
business since that date).
8.3 Financial Statements. There has been
furnished to the Lender the Form 10-K
Annual Report filed with the SEC in March
2005, which included audited financial
statements for the year ended December 31,
2004 for all Borrowers; and as set
forth in the May 4, 2005 Form 8-K filling
with the SEC, Pro Forma basis
financial statements as of and for the year
ended December 31, 2004 for the
Borrower and related entities reflecting
the May 1, 2005 Merger. There has also
been furnished to the Lender the Form 10-Q
Quarterly Report filed with the SEC
for the Borrowers, which included unaudited
financial statements for the three
months ending March 31, 2005 for all
Borrowers. Such filings have been prepared
in accordance with generally accepted
accounting principles and fairly present
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the financial condition of the Borrower as
at the close of business on the
date(s) thereof and the results of
operations for the fiscal year or period then
ended. As of the date of this Agreement,
there are no liabilities or contingent
liabilities of the Borrower known to the
officers, partners, or trustees of the
Borrower which are not disclosed in said
financial statements and the related
notes thereto other than the Obligations,
except for contingent liabilities
associated with the disposition of
properties in such amounts as would not
reasonably be expected to have a material
adverse effect on Borrower's financial
condition.
8.4 No Material Changes, Etc. Since the
Balance Sheet Date, there has occurred
no materially adverse change in the
financial condition or business of the
Borrower other than changes described in
the Form 8-K dated as of May 4, 2005 or
the Form 10-Q dated as of May 6, 2005, and
changes in the ordinary course of
business that have not had any material
adverse effect either individually or in
the aggregate on the business or financial
condition of such Borrower.
8.5 Franchises, Patents, Copyrights, Etc.
The Borrower possesses, and will at
all times possess, 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 or as it is intended to
be conducted with respect to the Borrowing
Base Properties, without known
conflict with any rights of others.
8.6 Litigation. There are no actions,
suits, proceedings or investigations of
any kind pending or, to Borrower's
knowledge, threatened against the Borrower
before any court, tribunal or
administrative agency or board or any mediator or
arbitrator that, either in any case or in
the aggregate, would reasonably be
expected to materially and adversely affect
the business, assets or financial
condition of the Borrower taken as a whole,
or result in any material liability
not adequately covered by insurance, and
for which adequate reserves are not
maintained on the balance sheet of such
Person, 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
will materially and adversely affect
the ability of the Borrower to use and
occupy any of the properties comprising
the Borrowing Base Properties or to pay and
perform the Obligations in the
manner contemplated by this Agreement and
the other Loan Documents.
8.7 No Materially Adverse Contracts, Etc.
The Borrower is not subject to any
charter, corporate or other legal
restriction, or any judgment, decree, order,
rule or regulation that has or is
reasonably expected in the future to have a
materially adverse effect on the business,
assets or financial condition of such
Person. Each Borrower is not, and will not
be, a party to any contract or
agreement that has or is expected to have
any materially adverse effect on the
business of such Person.
8.8 Compliance With Other Instruments,
Laws, Etc. The Borrower is not, and will
not at any time be, in violation of any
provision of its Organizational
Documents 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 would be likely to materially and
adversely affect the financial condition,
properties or business of such Person.
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<PAGE>
8.9 Tax Status. Each of the entities
comprising the Borrower (a) has made or
filed, and will make or file in a timely
fashion, all federal and state income
and all other tax returns, reports and
declarations required by any jurisdiction
to which it is subject, (b) has paid, and
will pay when due, 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, (c) if a
partnership, limited partnership,
limited liability partnership, or limited
liability company, has, and will
maintain, partnership tax classification
under the Code, and (d) has set aside,
and will at all times set aside, on its
books provisions reasonably adequate for
the payment of all taxes for periods
subsequent to the period to which such
returns, reports or declarations apply.
There are no unpaid taxes in any
material amount claimed to be due by the
taxing authority of any jurisdiction,
and the officers, partners or trustees of
the Borrower know of no basis for any
such claim. The Borrower has filed, and
will continue to file, all of such tax
returns, reports, and declarations either
(i) separately from any parent or
affiliate or (ii) if part of a consolidated
filing, as a separate member of any
such consolidated group.
8.10 No Event of Default. No Default or
Event of Default has occurred and is
continuing.
8.11 Setoff, Etc. The Lenders' rights with
respect to the repayment of the
Obligations are not subject to any setoff,
claims, withholdings or other
defenses.
8.12 Certain Transactions. None of (a) the
officers, trustees, directors,
general partners, managers, members,
stockholders, beneficiaries, or employees
of any Borrower or Subsidiary thereof or
(b) to the knowledge of the Borrower,
any corporation, partnership, trust or
other entity in which any such officer,
trustee, director, general partner,
manager, member, stockholder, beneficiary,
or employee has a substantial interest or
is an officer, director, trustee,
manager or general partner, is presently a
party to any transaction with the
Borrower (other than for services as
employees, officers, trustees, managers and
directors).
8.13 Subsidiaries. As of the date hereof,
the Borrower's Subsidiaries are as set
forth on Schedule 5.
8.14 General Partners. As of the date
hereof, except as set forth in Schedule 2,
the Borrower has no other general
partners.
8.15 ERISA Plan. The Borrower does not, and
will not, maintain or contribute to
an ERISA Plan.
8.16 Solvency. Borrower, on a consolidated
basis, (a) is not insolvent nor will
be rendered insolvent by the Indebtedness
incurred in connection with the Loan,
(b) does not have unreasonably small
capital with which to engage in its
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<PAGE>
business, or (c) has not incurred
Indebtedness beyond its ability to pay such
Indebtedness as it matures. The Borrower,
on a consolidated basis, has assets
having a value in excess of amounts
required to pay any Indebtedness.
8.17 The Borrowing Base Properties. The
Borrower makes the following
representations and warranties, to the best
of its knowledge, with respect to
each individual property included in the
Borrowing Base Properties, as of the
date hereof:
(a)
Availability of
Utilities. (i) all utility services necessary and
sufficient for the use and operation of each property comprising
the
Borrowing Base Properties are presently, and in the future for
a
material portion of the Borrowing Base Properties, will at all
times
be, available to the boundaries of each of the properties
comprising
the Borrowing Base Properties through dedicated public rights of
way
or through perpetual private easements; and (ii) the Owner has
obtained all utility installations and connections required for
the
operation and servicing of each of the properties comprising
the
Borrowing Base Properties for its intended purposes.
(b)
Access. (i) the
rights of way for all roads necessary for the
utilization in all material respects of each of the properties
comprising the Borrowing Base Properties for its intended
purposes
have either been acquired by the appropriate Governmental
Authority
or have been dedicated to public use and accepted by such
Governmental Authority; (ii) All such roads have been completed
and
the right to use all such roads, or suitable substitute rights
of
way, have been obtained and in the future for a material portion
of
the Borrowing Base Properties, shall be maintained at all times;
and
(iii) all curb cuts, driveways and traffic signals required for
the
operation and use in all material respects of each of the
properties
comprising the Borrowing Base Properties are existing and in
the
future for a material portion of the Borrowing Base Properties
shall
be maintained at all times.
(c)
Condition of
Borrowing Base Properties. Neither the Borrowing Base
Properties nor any material part thereof is now damaged or
injured
as result of any material fire, explosion, accident, flood or
other
casualty or has been the subject of any Taking; no Taking is
pending
or contemplated.
(d)
Compliance with
Requirements/Historic Status/Flood Area. The
Borrowing Base Properties comply with, and in the future for a
material portion of the Borrowing Base Properties, will at all
times
comply with all material Requirements. The Borrower will give
all
such notices to, and take all such other actions with respect
to,
such Governmental Authority as may be required under applicable
Requirements to use, occupy and operate the properties
comprising
the Borrowing Base Properties, except for any failure which
would
not reasonably be expected to have a material adverse effect on
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Borrower's financial condition taken as a whole. Except as
disclosed
in the Environmental Report, Borrower has received no notice
alleging any material non-compliance by any of the properties
comprising the Borrowing Base Properties with any Requirements
or
indicating that any of the properties comprising the Borrowing
Base
Properties is located within any historic district or has, or
may
be, designated as any kind of historic or landmark site under
applicable Requirements. None of the properties comprising the
Borrowing Base Properties, except for Silverside Louisiana
property
is located in any special flood hazard area as defined under
applicable Requirements, unless such property is adequately
covered
by insurance.
(e)
Other
Contracts.
(i) The Borrower
has not made, and will not make any, material
contract or arrangement of any kind or type whatsoever
(whether oral or written, formal or informal), the performance
of which by the other party thereto would reasonably be
expected to give rise to a lien or encumbrance on any of the
properties comprising the Borrowing Base Properties other than
a Permitted Lien.
(ii) The Borrower has
not made, and will not make, any material
contract or arrangement of any kind or type whatsoever, with
any affiliate of the Borrower, except for management
agreements with FSP
Property Management LLC or agreements with
a Syndication REIT (including without limitation agreements
relating to Affiliate Dispositions) which shall be deemed
approved by Lenders, unless such contract or arrangement is
(i) approved in writing in advance by the Agent, (ii) on the
same terms as would be generally available to the Borrower in
an arm's length contract or arrangement with a third party,
and (iii) evidenced by a written agreement.
(f)
Violations.
Except as disclosed in the Environmental Reports, the
Borrower has received no notices of, or has any knowledge of,
any
violation of any applicable material Requirements with respect
to
any of the properties comprising the Borrowing Base Properties.
(g)
Environmental
Matters. The Borrower has caused an investigation to
be made of the past and present condition and usage of each
individual property included in the Borrowing Base Properties
and
the operations conducted thereon and, based upon such diligent
investigation, except as disclosed in the Environmental Report
makes
the following representations and warranties to the best of
Borrower's knowledge:
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<PAGE>
(i) With respect
to the Borrowing Base Properties, neither the
Borrower nor any operator of any of the properties comprising
the Borrowing Base Properties or any operations thereon is in
violation of any Environmental Law or any judgment, decree or
order related thereto which violation would reasonably be
expected to have a material adverse effect on the business,
assets or financial condition of the Borrower.
(ii) The Borrower has
not received notice from any third Person
including, without limitation, any federal, state or local
governmental authority, asserting (i) that it has been
identified by the United States Environmental Protection
Agency ("EPA) as a potentially responsible Person with respect
to a site listed on the National Priorities List, 40 C.F.R.
Part 300 Appendix B (1986); (ii) that any Hazardous Substances
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 Person has conducted or has ordered that the
Borrower 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 Person's incurrence of costs, expenses, losses or
damages of any kind whatsoever in connection with the release
of
Hazardous Substances.
(iii) With respect to the Borrowing Base Properties: (i) no
portion
of the Borrowing Base Properties has been used for the
handling, processing, storage or disposal of Hazardous
Substances except for use incidental to the primary use of the
Borrowing Base Properties which use has been materially in
accordance with applicable Environmental Laws; and no
underground tank or other underground storage receptacle for
Hazardous Substances is located on any portion of the
Borrowing Base Properties except in material compliance with
Environmental Laws; (ii) in the course of any activities
conducted by the Borrower or the operators of its properties,
no Hazardous Substances have been generated or are being used
on the Borrowing Base Properties except materially in
accordance with applicable Environmental Laws; (iii) there has
been no release, i.e. any past or present releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, disposing or dumping (a "Release") or
threatened Release of Hazardous Substances on, upon, into or
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<PAGE>
from the Borrowing Base Properties, which Release would have a
material adverse effect on the value of the Borrowing Base
Properties; (iv) there have been no Releases on, upon, from or
into any real property in the vicinity of any of the Borrowing
Base Properties which, through soil or groundwater
contamination, has come to be located on, and which has a
material adverse effect on the value of the Borrowing Base
Properties; and (v) any Hazardous Substances that have been
generated by Borrower on any of the Borrowing Base Properties
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 operating
materially in compliance with such permits and applicable
Environmental Laws.
(iv) Neither the
Borrower nor any property comprising the Borrowing
Base Properties is subject to any applicable Environmental Law
requiring the performance of Hazardous Substances site
assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency
or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of
the transactions set forth herein and contemplated hereby, or
to the effectiveness of any other transactions contemplated
hereby.
8.18 No Broker or Finder. Neither Borrower,
nor anyone on behalf thereof, has
dealt with any broker, finder or other
person or entity who or which may be
entitled to a broker's or finder's fee, or
other compensation, payable by Agent
or the Lenders in connection with
establishing of the Loan.
8.19 General. Each Borrower has disclosed
any material fact or condition which
is necessary to make the representations
and warranties set forth herein or in
any other Loan Document not materially
misleading; provided that the Borrower
shall have no obligation to update any
representation and warranty made as of a
specific date.
8.20 Representations, Warranties, Covenants
and Agreements with Respect to the
Borrowing Base Properties. The
representations, warranties, covenants and
agreements contained herein with respect to
the Borrowing Base Properties, or
any of the properties comprising the
Borrowing Base Properties, shall be made as
of the date hereof.
9. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees
that, so long as the Loan is
outstanding:
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9.1 Punctual Payment. The Borrower will
duly and punctually pay or cause to be
paid the principal and interest on the Loan
and all other amounts provided for
in the Note, this Agreement and the other
Loan Documents to which the Borrower
is a party, all in accordance with the
terms of the Notes, this Agreement and
such other Loan Documents.
9.2 Financial Statements, Certificates and
Information. The Borrower will
deliver, or cause to be delivered, to the
Lenders:
(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, on a
consolidated basis the audited balance sheet (i.e. SEC Form 10-K)
of
the Borrower at the end of such year, and the related audited
statement of income, statement of retained earnings, changes in
capital, operating statements, and statement of cash flows 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, 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
Lender,
together with a written statement from the chief financial
officer
of the company stating that they have read a copy of this
Agreement,
and that, in making the examination necessary to said
certification,
they have obtained no knowledge of any Default or Event of
Default
under this Agreement, or, if such officer shall have obtained
knowledge of any then existing Default or Event of Default he or
she
shall disclose in such statement any such Default or Event of
Default. In the event that the Borrower has filed a Notification
of
Late Filing Form (SEC Form 12b-25) with the Securities and
Exchange
Commission, then the Borrower will not be in violation of this
section as long as the Borrower provides the Agent with such
required financial statement no later than three Business Days
after
such financial statements have been filed with the Securities
and
Exchange Commission;
(b)
as soon as
practicable, but in any event not later than forty-five
(45) days after the end of each fiscal quarter of the Borrower,
copies of the unaudited balance sheet (i.e. SEC Form 10Q) of
the
Borrower as at the end of such quarter, and the related
unaudited
statement of income, statement of retained earnings, changes in
capital, and statement of cash flows 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, partner or trustee of the Borrower that
the
information contained in such financial statements fairly
presents
the financial position of the Borrower on the date thereof
(subject
to year-end adjustments) and that, in making the examination
necessary to said certification, such Person has obtained no
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knowledge of any Default or Event of Default under this
Agreement.
In the event that the Borrower has filed a Notification of Late
Filing Form (Form 12b-25) with the Securities and Exchange
Commission, then the Borrower will not be in violation of this
section as long as the Borrower provides the Agent with such
required financial statement no later than three business days
after
such financial statements have been filed with the Securities
and
Exchange Commission;
(c)
contemporaneously with the delivery of the financial statements
referred to in clause (a) above, a statement of all contingent
liabilities of the Borrower which are not reflected in such
financial statements or referred to in the notes thereto, and
annual
budget and cash flow forecasts for the Borrower and Borrowing
Base
Properties all in reasonable detail and certified by the
principal
financial or accounting officer of FSP;
(d)
simultaneously
with the delivery of the financial statements
referred to in clauses (a) and (b) above, a covenant compliance
certificate signed by the principal financial or accounting
officer
of FSP and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in ss.10.8;
(e)
Simultaneously
with the filing thereof a copy of the Borrower's tax
return together with all schedules thereof; and
(f)
from time to
time such other financial data and information
(including accountants' management letters) as the Lender may
reasonably request.
9.3 Insurance. (a) Upon request, the
Borrower will provide evidence of insurance
with respect to each of the properties
comprising the Borrowing Base Properties.
(b) The
Borrower will provide
