AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

Exhibit 10.1

 

AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

 

dated as of June 30, 2004

 

among

 

CARRAMERICA REALTY OPERATING PARTNERSHIP, L.P.,

as Borrower,

 

CARRAMERICA REALTY CORPORATION,

as Guarantor,

 

CARRAMERICA REALTY L.P.,

as Guarantor,

 

JPMORGAN CHASE BANK,

as Bank and as Administrative Agent for the Banks,

 

J.P. MORGAN CHASE SECURITIES INC.,

as Lead Arranger and Sole Bookrunner

 

BANK OF AMERICA, N.A.

as Syndication Agent

 

PNC BANK, NATIONAL ASSOCIATION

as Documentation Agent

 

WACHOVIA BANK, N.A.

as Documentation Agent

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

as Documentation Agent

 

COMMERZBANK AG, NEW YORK BRANCH

as Co-Agent

 

NATIONAL AUSTRALIA BANK LIMITED,

NEW YORK BRANCH as Co-Agent

 

US BANK

as Co-Agent

 

AND THE BANKS LISTED IN THE CREDIT AGREEMENT

AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

 

 

TABLE OF CONTENTS

 

 

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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of June 30, 2004, among CARRAMERICA REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership, as borrower (together with its permitted successors, either “ CarrAmerica OP ” or the “ Borrower ”), CARRAMERICA REALTY CORPORATION, a Maryland corporation, as guarantor (“ CarrAmerica Corporation ”), CARRAMERICA REALTY, L.P., a Delaware limited partnership, as guarantor (“ CarrAmerica LP and together with CarrAmerica Corporation, collectively, “Guarantors” and individually, a “ Guarantor ”), JPMORGAN CHASE BANK, as Bank and as Administrative Agent for the Banks (together with its successors and assigns, the “ Administrative Agent ”), J.P. MORGAN CHASE SECURITIES INC., as Lead Arranger and Sole Bookrunner (together with its successors and assigns, “ J.P. Morgan Chase Securities ”), BANK OF AMERICA, N.A., as Syndication Agent, PNC BANK, NATIONAL ASSOCIATION, as Documentation Agent, WACHOVIA BANK, N.A., as Documentation Agent, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Documentation Agent, COMMERZBANK, AG, NEW YORK BRANCH, as Co-Agent, NATIONAL AUSTRALIA BANK LIMITED, NEW YORK BRANCH, as Co-Agent, US BANK, as Co-Agent and the BANKS listed on the signature pages hereof (the “ Banks ”).

 

WHEREAS, CarrAmerica Corporation, as borrower, the Administrative Agent and the Banks entered into a Revolving Credit Agreement, dated as of June 21, 2004 (the “ Existing Credit Agreement ”);

 

WHEREAS, the obligations of CarrAmerica Corporation pursuant to the Existing Credit Agreement were guaranteed by CarrAmerica LP pursuant to a Guaranty of Payment, made by CarrAmerica LP, dated as of June 21, 2004;

 

WHEREAS, effective as of June 30, 2004, CarrAmerica Corporation converted into an “UPREIT” structure (the “ Reorganization ”) as permitted by Section 9.15 of the Existing Credit Agreement;

 

WHEREAS, pursuant to Section 9.15 of the Existing Credit Agreement, upon the completion of the

 

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Reorganization, the parties have agreed (i) to amend and restate the Existing Credit Agreement to reflect the Reorganization, (ii) that CarrAmerica OP shall replace CarrAmerica Corporation as the borrower hereunder; and (iii) that CarrAmerica Corporation shall become, jointly and severally, with CarrAmerica LP, co-guarantors pursuant to an Amended and Restated Guaranty of Payment; and

 

WHEREAS, the parties hereto have agreed to amend and restate the terms and conditions contained in the Existing Credit Agreement in their entirety as hereinafter set forth.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

I. The Existing Credit Agreement is hereby modified so that all of the terms and conditions of the aforesaid Existing Credit Agreement shall be restated in their entirety as set forth herein, and CarrAmerica OP, as borrower, agrees to comply with and be subject to all of the terms, covenants and conditions of this Agreement.

 

II. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and assigns, and shall be deemed to be effective as of the date hereof.

 

III. Any reference in the Notes, any other Loan Document or any other document executed in connection with the Existing Credit Agreement shall be deemed to refer to this Agreement.

 

The parties hereto hereby agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

SECTION 1.1. Definitions . The following terms, as used herein, have the following meanings:

 

“ Absolute Rate Auction ” means a solicitation of Money Market Quotes setting forth Money Market Absolute Rates pursuant to Section 2.3.

 

“ Act ” has the meaning set forth in Section 9.17.

 

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“ Adjusted Annual EBITDA ” means Annual EBITDA, less CapEx.

 

“ Adjusted London Interbank Offered Rate ” has the meaning set forth in Section 2.7(b).

 

“ Administrative Agent ” means JPMorgan Chase Bank in its capacity as Administrative Agent for the Banks hereunder, and its successors in such capacity.

 

“ Administrative Questionnaire ” means, with respect to each Bank, an administrative questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative Agent (with a copy to the Borrower) duly completed by such Bank.

 

“ Affiliate ” means, with respect to a Person, an entity in which such Person owns, directly or indirectly, 10% or more of the ownership or equity interests.

 

“ Agreement ” means this Amended and Restated Revolving Credit Agreement as the same may from time to time hereafter be modified, supplemented or amended.

 

“ Alternate Base Rate ” means, for any day, a rate per annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of ½ of 1% plus the Federal Funds Rate for such day.

 

“ Alternate Base Rate Loan ” means a Committed Loan to be made by a Bank with reference to the Alternate Base Rate in accordance with the applicable Notice of Committed Borrowing or pursuant to Article VIII.

 

“ Annual EBITDA ” means, the product of (i) EBITDA, measured as of the last day of the immediately preceding calendar quarter, and (ii) four (4).

 

“ Applicable Fee Percentage ” means the respective percentages per annum determined, at any time, based on the range into which Borrower’s Credit Rating then falls, in accordance with the following table. Any change in Borrower’s Credit Rating causing it to move to a different range on the table shall effect an immediate change in the Applicable Fee Percentage. Borrower must have two Credit Ratings, one of which must be from Moody’s or S&P. Any change in Borrower’s Credit Rating causing it to move to a different range on the table shall effect an immediate change in the Applicable Fee Percentage as of the date of such Credit Rating change. In the event that Borrower receives two (2) Credit Ratings that are not equivalent, the Applicable Fee

 

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Percentage shall be determined by the lower of such two (2) Credit Ratings, at least one of which shall be a Credit Rating from S&P or Moody’s. In the event Borrower receives more than two (2) ratings (from S&P, Moody’s or Fitch) and such ratings are not equivalent, the Applicable Fee Percentage shall be determined by the lower of the two highest ratings; provided that each of said two (2) highest ratings shall be Investment Grade Ratings and at least one of which shall be an Investment Grade Rating from S&P or Moody’s.

 

 

“ Applicable Interest Rate ” means (a) if a fixed rate interest, then such fixed rate; or (b) if a floating rate, the lesser of (i) the rate at which the interest rate applicable to any floating rate indebtedness could be fixed, at the time of calculation, by the Borrower entering into an unsecured interest rate swap agreement (or, if such rate is incapable of being fixed by entering into an unsecured interest rate swap agreement at the time of calculation, a reasonably determined fixed rate equivalent) and (ii) the rate at which the interest rate applicable to such floating rate indebtedness is actually capped, at the time of calculation, if Borrower has entered into an interest rate cap agreement with respect thereto.

 

“ Applicable Lending Office ” means, with respect to any Bank, (i) in the case of its Alternate Base Rate Loans, its Domestic Lending Office, (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its Money Market Loans, its Money Market Lending Office.

 

“ Applicable Margin ” means, with respect to each Loan, the respective percentages per annum determined

 

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based on the range into which the Borrower’s Credit Rating then falls, in accordance with the following table. Borrower must have two Credit Ratings, one of which must be from Moody’s or S&P. Any change in Borrower’s Credit Rating causing it to move to a different range on the table shall effect an immediate change in the Applicable Margin as of the date of such Credit Rating change. In the event that Borrower receives two (2) Credit Ratings that are not equivalent, the Applicable Margin shall be determined by the lower of such two (2) Credit Ratings, at least one of which shall be an Credit Rating from S&P or Moody’s. In the event Borrower receives more than two (2) ratings (from S&P, Moody’s or Fitch) and such ratings are not equivalent, the Applicable Margin shall be determined by the lower of the two highest ratings; provided that each of said two (2) highest ratings shall be Investment Grade Ratings and at least one of which shall be an Investment Grade Rating from S&P or Moody’s.

 

 

Administrative Agent shall notify the Banks in writing promptly after it obtains knowledge of any change in Borrower’s Credit Rating which shall effect a change in the Applicable Margin.

 

“ Bank ” means each bank listed on the signature pages hereof, each Eligible Assignee which becomes a Bank pursuant to Section 9.6(c), and their respective successors and each Designated Lender; provided, however, that the term “ Bank ” shall exclude each Designated Lender when used in reference to a Committed Loan, the Commitments or terms relating to the Committed Loans and the Commitments and shall further exclude each Designated Lender for all other purposes hereunder except

 

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that any Designated Lender which funds a Money Market Loan shall, subject to Section 9.6(d), has the rights (including the rights given to a Bank contained in Section 9.3 and otherwise in Article 9) and obligations of a Bank associated with holding such Money Market Loan.

 

“ Bank Notes ” means the promissory notes of Borrower, each substantially in the form of Exhibit A-1 hereto, evidencing the obligation of Borrower to repay the Loans, and “ Bank Note ” means any one of such promissory notes issued hereunder.

 

“ Bankruptcy Code ” means Title 11 of the United States Code, entitled “Bankruptcy,” as amended from time to time, and any successor statute or statutes.

 

“ Benefit Arrangement ” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.

 

“ Borrower ” has the meaning set forth in the recitals hereof.

 

“ Borrowing ” means a borrowing hereunder consisting of Loans made to the Borrower at the same time by the Banks pursuant to Article II. A Borrowing is a “Domestic Borrowing” if such Loans are Alternate Base Rate Loans, a “Euro-Dollar Borrowing” if such Loans are Euro-Dollar Loans or a “Money Market Borrowing” if such Loans are Money Market Loans.

 

“ CapEx ” means an amount equal to $0.375 per square foot per calendar quarter for each Real Property Asset owned or ground leased by any Consolidated Entity as of the last day of the immediately preceding calendar quarter. For Minority Holdings of any Consolidated Entity, CapEx shall be determined on a pro rata basis based upon such Consolidated Entity’s ownership interest.

 

“ Capital Expenditures ” means, for any period, the sum of all expenditures (whether paid in cash or accrued as a liability) by the Consolidated Entities, as applicable, which are capitalized on a consolidated balance sheet of the Consolidated Entities in conformity with GAAP, but less all expenditures made with respect to the acquisition by the Consolidated Entities and their Consolidated Subsidiaries of any interest in real property within nine months after the date such interest in real property is acquired. For Minority Holdings of any Consolidated Entity, Capital Expenditures shall be determined on a pro rata basis based upon such Consolidated Entity’s ownership interest.

 

“ Cash or Cash Equivalents ” means (i) cash, (ii) direct obligations of the United States Government, including,

 

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without limitation, treasury bills, notes and bonds, (iii) interest bearing or discounted obligations of Federal agencies and government sponsored entities or pools of such instruments offered by banks rated AA or better by S&P or Aa2 by Moody’s and dealers, including, without limitation, Federal Home Loan Mortgage Corporation participation sale certificates, Government National Mortgage Association modified pass-through certificates, Federal National Mortgage Association bonds and notes, Federal Farm Credit System securities, (iv) time deposits, domestic and Eurodollar certificates of deposit, bankers acceptances, commercial paper rated at least A-1 by S&P and P-1 by Moody’s, and/or guaranteed by an Aa rating by Moody’s, an AA rating by S&P, or better rated credit, floating rate notes, other money market instruments and letters of credit each issued by banks which have a long-term debt rating of at least AA by S&P or Aa2 by Moody’s, (v) obligations of domestic corporations, including, without limitation, commercial paper, bonds, debentures, and loan participations, each of which is rated at least AA by S&P, and/or Aa2 by Moody’s, and/or unconditionally guaranteed by an AA rating by S&P, an Aa2 rating by Moody’s, or better rated credit, (vi) obligations issued by states and local governments or their agencies, rated at least MIG-1 by Moody’s and/or SP-1 by S&P and/or guaranteed by an irrevocable letter of credit of a bank with a long-term debt rating of at least AA by S&P or Aa2 by Moody’s, (vii) repurchase agreements with major banks and primary government securities dealers fully secured by U.S. Government or agency collateral equal to or exceeding the principal amount on a daily basis and held in safekeeping, and (viii) real estate loan pool participations, guaranteed by an entity with an AA rating given by S&P or an Aa2 rating given by Moody’s, or better rated credit.

 

“ Closing Date ” means the date on which the Administrative Agent shall have received the documents specified in or pursuant to Section 3.1.

 

“ Code ” means the Internal Revenue Code of 1986, as amended, or any successor statute.

 

“ Commitment ” means, with respect to each Bank, the amount committed by such Bank pursuant to this Agreement with respect to any Committed Loans, as such amount may be reduced from time to time pursuant to Sections 2.10 and 2.11. The initial aggregate amount of the Banks’ Commitments is $500,000,000 which amount is subject to increase as set forth in Section 2.19 and decrease as set forth in Section 2.11(f).

 

“ Committed Borrowing ” has the meaning set forth in Section 1.3.

 

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“ Committed Loan ” means a Loan made by a Bank pursuant to Section 2.1; provided that, if any such Loan or Loans (or portions thereof) are combined or subdivided pursuant to a Notice of Interest Rate Election, the term “ Committed Loan ” shall refer to the combined principal amount resulting from such combination or to each of the separate principal amounts resulting from such subdivision, as the case may be.

 

“ Consolidated Entities ” means at any date the Credit Parties and any of their Consolidated Subsidiaries.

 

“ Consolidated Subsidiary ” means, at any date, any Subsidiary or other entity which is consolidated with any of the Credit Parties, as applicable, in accordance with GAAP.

 

“ Consolidated Tangible Net Worth ” means at any date the consolidated unitholders’ equity of Borrower (determined on a book basis), less its consolidated Intangible Assets, all determined as of such date. For purposes of this definition “ Intangible Assets ” means with respect to any intangible assets, the amount (to the extent reflected in determining such consolidated unitholders’ equity) of all write-ups subsequent to December 31, 2003 in the book value of any asset owned by any Consolidated Entity and (ii) goodwill, patents, trademarks, service marks, trade names, anticipated future benefit of tax loss carry forwards, copyrights, organization or developmental expenses and other intangible assets; provided, however, that any portion of the purchase price of real estate that may be allocated to leases and similar intangibles in accordance with Financial Accounting Standards No. 141 shall not be included in the definition of Intangible Assets.

 

“ Contingent Obligation ” as to any Person means, without duplication, (i) any contingent obligation of such Person required to be shown on such Person’s balance sheet in accordance with GAAP, (ii) any obligation required to be disclosed in the footnotes to such Person’s financial statements, guaranteeing partially or in whole any non-recourse Debt, lease, dividend or other obligation, exclusive of contractual indemnities (including, without limitation, any indemnity or price-adjustment provision relating to the purchase or sale of securities or other assets) and guarantees of non-monetary obligations (other than guarantees of completion) which have not yet been called on or quantified, of such Person or of any other Person and (iii) any specific performance contract or obligation to acquire real property upon completion of construction or certificate of occupancy (a “ Forward Purchase Contract ”), whether or not that obligation is required to be shown on that Person’s GAAP financial statements

 

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or footnotes. The amount of any Contingent Obligation described in clause (ii) shall be deemed to be (a) with respect to a guaranty of interest or interest and principal, or operating income guaranty, the sum of all payments required to be made thereunder (which in the case of an operating income guaranty shall be deemed to be equal to the debt service for the note secured thereby), calculated at the Applicable Interest Rate, through (i) in the case of an interest or interest and principal guaranty, the stated date of maturity of the obligation (and commencing on the date interest could first be payable thereunder), or (ii) in the case of an operating income guaranty, the date through which such guaranty will remain in effect, and (b) with respect to all guarantees not covered by the preceding clause (a), an amount equal to the stated or determinable amount of the primary obligation in respect of which such guaranty is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as recorded on the balance sheet and on the footnotes to the most recent financial statements of the Borrower required to be delivered pursuant to Section 5.1 hereof. Notwithstanding anything contained herein to the contrary, guarantees of completion shall not be deemed to be Contingent Obligations unless and until a claim for payment or performance has been made thereunder, at which time any such guaranty of completion shall be deemed to be a Contingent Obligation in an amount equal to any such claim. Subject to the preceding sentence, (i) in the case of a joint and several guaranty given by such Person and another Person (but only to the extent such guaranty is recourse, directly or indirectly to such Person), the amount of the guaranty shall be deemed to be 100% thereof unless and only to the extent that the other Person has delivered Cash or Cash Equivalents to secure all or any part of its guaranteed obligations, (ii) in the case of joint and several guarantees given by a Person in whom a Person owns an interest (which guarantees are non-recourse to the Person which owns such interest), to the extent the guarantees, in the aggregate, exceed 15% of total real estate investments, the amount in excess of 15% shall be deemed to be a Contingent Obligation of the Person which owns the interest, and (iii) in the case of a guaranty (whether or not joint and several) of an obligation otherwise constituting Debt of such Person, the amount of such guaranty shall be deemed to be only that amount in excess of the amount of the obligation constituting Debt of such Person.

 

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Notwithstanding anything contained herein to the contrary, “Contingent Obligations” shall not be deemed to include guarantees of Unused Commitments or of construction loans to the extent the same have not been drawn.

 

“ Control ” or “ control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

 

“ Convertible Securities ” means evidences of shares of stock, limited or general partnership interests or other ownership interests, warrants, options, or other rights or securities which are convertible into or exchangeable for, with or without payment of additional consideration, common shares of beneficial interest of any Consolidated Entity or partnership interests of any Consolidated Entity, as the case may be, either immediately or upon the arrival of a specified date or the happening of a specified event.

 

“ Credit Parties ” means collectively, the Borrower and the Guarantors (but with respect to CarrAmerica LP, CarrAmerica LP shall be a Credit Party only for so long as CarrAmerica LP is a Consolidated Subsidiary of CarrAmerica Corporation).

 

“ Credit Rating ” means the ratings assigned by not less than two of the Rating Agencies (at least one of which shall be S&P or Moody’s) to Borrower’s senior long-term unsecured indebtedness.

 

“ Debt ” of any Person means, without duplication, (A) as shown on such Person’s consolidated balance sheet (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property and (ii) all indebtedness of such Person evidenced by a note, bond, debenture or similar instrument (whether or not disbursed in full in the case of a construction loan), (B) the face amount of all letters of credit issued for the account of such Person and, without duplication, all unreimbursed amounts drawn thereunder, (C) all Contingent Obligations of such Person, and (D) all payment obligations of such Person under any interest rate protection agreement (including, without limitation, any interest rate swaps, caps, floors, collars and similar agreements) and currency swaps and similar agreements which

 

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were not entered into specifically in connection with Debt set forth in clauses (A), (B) or (C) above (provided if such aforementioned interest rate protection agreements, currency swaps or similar agreements are required to be disclosed on such Person’s balance sheet or financial footnotes of such Person’s financial statements, they shall be included in the definition of “Debt”). For purposes of this Agreement, Debt (other than Contingent Obligations) of a Person shall be deemed to include (i) with respect to partnerships, limited liability companies and corporations in which such Person, directly or indirectly, owns an interest, and which are consolidated on such Person’s financial statements, all of the Debt of such entities and (ii) with respect to Minority Holdings, only such Person’s pro rata share (such share being based upon such Person’s percentage ownership interest as shown on such Person’s annual audited financial statements) of the Debt of any Minority Holdings in which such Person, directly or indirectly, owns an interest, provided that such Debt is nonrecourse, both directly and indirectly, to such Person.

 

“ Debt Service ” of any Person means, measured as of the last day of each calendar quarter, an amount equal to the sum of (i) interest (whether accrued, paid or capitalized) actually payable on the Debt of such Person for such calendar quarter, plus (ii) scheduled payments of principal on such Debt, whether or not paid by such Person (excluding balloon payments) for such calendar quarter.

 

“ Default ” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.

 

“ Designated Lender ” means a special purpose corporation that (i) shall have become a party to this Agreement pursuant to Section 9.6(d), and (ii) is not otherwise a Bank.

 

“ Designated Lender Notes ” means promissory notes of the Borrower, substantially in the form of Exhibit A-2 hereto, evidencing the obligation of the Borrower to repay Money Market Loans made by Designated Lenders, and

 

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“Designated Lender Note” means any one of such promissory notes issued under Section 9.6(d).

 

“ Designating Lender ” has the meaning set forth in Section 9.6(d).

 

“ Designation Agreement ” means a designation agreement in substantially the form of Exhibit G attached hereto, entered into by a Bank and a Designated Lender and accepted by the Administrative Agent.

 

“ Domestic Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close.

 

“ Domestic Lending Office ” means, as to each Bank, its office located within the United States at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Domestic Lending Office) or such other office within the United States as such Bank may hereafter designate as its Domestic Lending Office by notice to the Borrower and the Administrative Agent.

 

“ EBITDA ” means, measured as of the last day of each calendar quarter, an amount equal to (i) total revenues relating to the Consolidated Entities’ interest in all Real Property Assets and the Consolidated Entities’ interest in Minority Holdings (including, without limitation, interest and other income), calculated in accordance with GAAP for such calendar quarter then ended (except that with respect to Minority Holdings, calculated in accordance with the Consolidated Entities’ pro rata interest in Minority Holdings), plus (ii) interest and other income of the Consolidated Entities, including, without limitation, real estate service revenues, for such period, less (iii) total operating expenses and other expenses relating to such Real Property Assets and to the Consolidated Entities’ interest in Minority Holdings for such period (other than interest, income taxes, depreciation, amortization, and other non-cash items), pro rata, in accordance with such Consolidated Entities’ interest in Minority Holdings, less (iv) total corporate operating expenses (including general overhead expenses) and other expenses of the Consolidated Entities and the Consolidated Entities’ interest in Minority Holdings

 

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(other than interest, taxes, depreciation, amortization and other non-cash items), pro rata, in accordance with such Consolidated Entities’ interest in Minority Holdings, for such period, without duplication.

 

“ Eligible Assignee” and “Eligible Institution” mean any of (a) a commercial bank organized under the laws of the United States or any State thereof or the District of Columbia and having total assets in excess of $1,000,000,000 calculated in accordance with GAAP, (b) a savings and loan association or savings bank organized under the laws of the United States or any State thereof or the District of Columbia and having total assets in excess of $1,000,000,000 calculated in accordance with GAAP, (c) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the “ OECD ”) or a political subdivision of any such country, and having total assets in excess of $1,000,000,000, calculated in accordance with GAAP, provided that such bank is acting at all times with respect to this Agreement through a branch or agency located in the United States of America and (d) a financial institution or a trust reasonably acceptable to Administrative Agent and Fronting Banks which is regularly engaged in making, purchasing or investing in loans and having total assets in excess of $500,000,000, calculated in accordance with GAAP.

 

“ Environmental Affiliate ” means any partnership, or joint venture, trust or corporation in which an equity interest is owned by a Consolidated Entity, either directly or indirectly.

 

“ Environmental Approvals ” means any permit, license, approval, ruling, variance, exemption or other authorization required under applicable Environmental Laws.

 

“ Environmental Claim ” means, with respect to any Person, any notice, claim, demand or similar communication (written or oral) by any other Person alleging potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damage, property damages, personal injuries, fines or penalties arising out of, based on or resulting from (i) the presence, or release into the environment, of any Material of Environmental Concern at any location, whether or not owned by such Person or (ii) circumstances forming the basis of any violation, or

 

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alleged violation, of any Environmental Law, in each case as to which there is a reasonable likelihood of an adverse determination with respect thereto and which, if adversely determined, would have a Material Adverse Effect.

 

“ Environmental Laws ” means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to the environment, the effect of the environment on human health or to emissions, discharges or releases of pollutants, contaminants, Hazardous Substances or hazardous wastes into the environment including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, Hazardous Substances or hazardous wastes or the clean-up or other remediation thereof.

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute.

 

“ ERISA Group ” means each of the Consolidated Entities, each of their Subsidiaries and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with any Consolidated Entity or any Subsidiary of a Consolidated Entity, are treated as a single employer under Section 414 of the Code.

 

“ Euro-Dollar Borrowing ” has the meaning set forth in Section 1.3.

 

“ Euro-Dollar Business Day ” means any Domestic Business Day on which commercial banks are open for international business (including dealings in dollar deposits) in London.

 

“ Euro-Dollar Lending Office ” means, as to each Bank, its office, branch or affiliate located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Euro-Dollar Lending Office) or such other office, branch or affiliate of such Bank as it may hereafter designate as its Euro-Dollar

 

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Lending Office by notice to the Borrower and the Administrative Agent.

 

“ Euro-Dollar Loan ” means a Committed Loan made or to be made by a Bank with reference to the Adjusted London Interbank Offered Rate in accordance with the applicable Notice of Committed Borrowing or Notice of Interest Rate Election.

 

“ Euro-Dollar Reserve Percentage ” has the meaning set forth in Section 2.7(b).

 

“ Event of Default ” has the meaning set forth in Section 6.1.

 

“ Existing Credit Agreement ” has the meaning set forth in the Recitals.

 

“ Existing Fronting Bank ” shall mean JPMorgan Chase Bank.

 

“ Existing Letters of Credit ” shall have the meaning set forth in Section 2.18.

 

“ Extension Date ” has the meaning set forth in Subsection 2.9(b) hereof.

 

“ Extension Fee ” shall mean a fee in an amount equal to twenty basis points (0.20%) due and payable on the aggregate amount of the Commitments on the date immediately preceding the first day of the Extension Term pursuant to the terms of Subsection 2.9(b) hereof.

 

“ Extension Notice ” has the meaning set forth in Subsection 2.9(b) hereof.

 

“ Extension Option ” has the meaning set forth in Subsection 2.9(b) hereof.

 

“ Extension Term ” has the meaning set forth in Subsection 2.9(b) hereof.

 

“ Facility Fee ” has the meaning set forth in Section 2.8(a).

 

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“ Federal Funds Rate ” means, for any day, the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Domestic Business Day next succeeding such day, provided that (i) if such day is not a Domestic Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Domestic Business Day as so published on the next succeeding Domestic Business Day, and (ii) if no such rate is so published on such next succeeding Domestic Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Chase on such day on such transactions by three Federal Funds brokers of recognized standing as determined by the Administrative Agent.

 

“ Federal Reserve Board ” means the Board of Governors of the Federal Reserve System as constituted from time to time.

 

“ Fixed Charge Coverage Ratio ” means the ratio, calculated as of the end of each calendar quarter, of Adjusted Annual EBITDA to the sum of (x) the product of (i) aggregate Debt Service of the Consolidated Entities for such calendar quarter and (ii) four (4), (y) the product of (i) distributions payable by the Borrower on preferred units outstanding during such calendar quarter and (ii) four (4), and, without duplication, (z) the product of (i) distributions payable by the Borrower to CarrAmerica Corporation during such calendar quarter for the purpose of paying dividends on preferred shares in CarrAmerica Corporation and (ii) four (4).

 

“ Fitch ” means Fitch Rating Services, Inc. or any successor thereto.

 

“ FMV Cap Rate ” means 9%.

 

“ Fronting Bank ” shall mean (i) with respect to the Letters of Credit, JPMorgan Chase Bank or such other Bank which has consented to be a Fronting Bank and which Borrower is notified by the Administrative Agent may be a Fronting Bank and which is designated by Borrower in its Notice of

 

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Borrowing as the Bank which shall issue a Letter of Credit with respect to such Notice of Borrowing and (ii) with respect to the Existing Letters of Credit, the Existing Fronting Bank.

 

“ FFO ” means “funds from operations,” on a consolidated basis, defined to mean consolidated net income (loss) (computed in accordance with GAAP), excluding consolidated gains (or losses) from debt restructurings and sales of properties, plus depreciation and amortization.

 

“ GAAP ” means generally accepted accounting principles recognized as such in the opinions and pronouncements of the Financial Accounting Standards Board and the American Institute of Certified Public Accountants or in such other statements by such other entity as may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of the date of determination.

 

“ Group of Loans ” means, at any time, a group of Loans consisting of (i) all Committed Loans which are Alternate Base Rate Loans at such time or (ii) all Committed Loans which are Euro-Dollar Loans having the same Interest Period at such time; provided that, if a Committed Loan of any particular Bank is converted to or made as an Alternate Base Rate Loan pursuant to Section 8.2 or 8.4, such Loan shall be included in the same Group or Groups of Loans from time to time as it would have been in if it had not been so converted or made.

 

“ Guarantors ” means CarrAmerica Realty, L.P., a Delaware limited partnership, and CarrAmerica Realty Corporation, a Maryland corporation, and their permitted successors.

 

“ Guaranty ” means that certain Amended and Restated Guaranty of Payment, dated the date hereof, made by Guarantors in favor of Administrative Agent, as agent on behalf of the Banks.

 

“ Hazardous Substances ” means any toxic, radioactive, caustic or otherwise hazardous substance, including petroleum, its derivatives, by-products and other

 

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hydrocarbons, or any substance having any constituent elements displaying any of the foregoing characteristics.

 

“ Indemnitee ” has the meaning set forth in Section 9.3(b).

 

“ Intercompany Liens ” has the meaning set forth in the definition of Permitted Liens.

 

“ Interest Period ” means: (1) with respect to each Euro-Dollar Borrowing, the period commencing on the date of such Borrowing specified in the Notice of Committed Borrowing or the date of continuation or conversion specified in the Notice of Interest Rate Election, as the case may be, and ending one, two, three or six months thereafter, as Borrower may elect in the applicable Notice of Committed Borrowing or in the Notice of Interest Rate Election; provided that:

 

(a) any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Euro-Dollar Business Day;

 

(b) any Interest Period which begins on the last Euro-Dollar Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (c) below, end on the last Euro- Dollar Business Day of a calendar month;

 

(c) if any Interest Period includes a date on which a payment of principal of the Committed Loans is required to be made under Section 2.10 but does not end on such date, then (i) the principal amount (if any) of each Euro-Dollar Loan required to be repaid on such date shall have an Interest Period ending on such date and (ii) the remainder (if any) of each such Euro-Dollar Loan shall have an Interest Period determined as set forth above; and

 

(d) no Interest Period shall end after the Maturity Date.

 

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(2) with respect to each Money Market LIBOR Loan, the period commencing on the date of such Loan specified in the applicable Notice of Money Market Borrowing and ending one, two, three or six months thereafter, as the Borrower may elect in the applicable Notice of Money Market Borrowing in accordance with Section 2.3; provided that:

 

(a) any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Euro-Dollar Business Day;

 

(b) any Interest Period which begins on the last Euro-Dollar Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of a calendar month;

 

(c) if any Interest Period includes a date on which a payment of principal of the Committed Loans is required to be made under Section 2.10 but does not end on such date, then (i) the principal amount (if any) of each Money Market LIBOR Loan required to be repaid on such date shall have an Interest Period ending on such date, and (ii) the remainder (if any) of each such Money Market LIBOR Loan shall have an Interest Period determined as set forth above; and

 

(d) any Interest Period which would otherwise end after the Maturity Date shall end on the Maturity Date.

 

(3) with respect to each Money Market Absolute Rate Loan, the period commencing on the date of such Loan specified in the applicable Notice of Money Market Borrowing and ending such number of days thereafter (but not less than 14 days or more than 180 days) as the Borrower may elect in the applicable Notice of Money Market Borrowing in accordance with Section 2.3; provided that:

 

(a) any Interest Period which would otherwise end on a day which is not a Domestic Business Day shall be extended to the next succeeding Domestic Business Day; and

 

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(b) if any Interest Period includes a date on which a payment of principal of the Committed Loans is required to be made under Section 2.10 but does not end on such date, then (i) the principal amount (if any) of each Money Market Absolute Rate Loan required to be repaid on such date shall have an Interest Period ending on such date, and (ii) the remainder (if any) of each such Money Market Absolute Rate Loan shall have an Interest Period determined as set forth above; and

 

(c) any Interest Period which would otherwise end after the Maturity Date shall end on the Maturity Date.

 

“ Investment Grade Rating ” means a rating for a Person’s senior long-term unsecured debt, or if no such rating has been issued, a “shadow” rating, of BBB- or better from S&P, and a rating or “shadow” rating of Baa3 or better from Moody’s or a rating or “shadow” rating equivalent to the foregoing from Fitch. Any such “shadow” rating shall be evidenced by a letter from the applicable Rating Agency or by such other evidence as may be reasonably acceptable to the Required Banks.

 

“ Invitation for Money Market Quotes ” has the meaning set forth in Section 2.3.

 

“ Letter(s) of Credit ” has the meaning provided in Section 2.2(b).

 

“ Letter of Credit Collateral ” has the meaning provided in Section 6.4.

 

“ Letter of Credit Collateral Account ” has the meaning provided in Section 6.4.

 

“ Letter of Credit Documents ” has the meaning provided in Section 2.17.

 

“ Letter of Credit Usage ” means at any time the sum of (i) the aggregate maximum amount available to be drawn under the Letters of Credit and the Existing Letters of Credit then outstanding, assuming compliance with all requirements for drawing referred to therein, and (ii) the

 

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aggregate amount of the Borrower’s unpaid obligations under this Agreement in respect of the Letters of Credit and the Existing Letters of Credit.

 

“ LIBOR Auction ” means a solicitation of Money Market Quotes setting forth Money Market Margins based on the London Interbank Offered Rate pursuant to Section 2.3.

 

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, or any other type of preferential arrangement that has the practical effect of creating a security interest, in respect of such asset. For the purposes of this Agreement, each of the Credit Parties or any of their respective Subsidiaries shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.

 

“ Loan ” means the loan or loans to be made to Borrower for the purposes set forth in Section 5.15 hereof which loan or loans shall be an Alternate Base Rate Loan, a Euro-Dollar Loan or a Money Market Loan and “ Loans ” means Alternate Base Rate Loans, Euro-Dollar Loans or Money Market Loans or any combination of the foregoing.

 

“ Loan Documents ” means this Agreement, the Guaranty, the Notes, Letters of Credit, the Existing Letters of Credit and Letter of Credit Documents.

 

“ London Interbank Offered Rate ” has the meaning set forth in Section 2.7(b).

 

“ Majority Owned Asset Cap ” shall have the meaning set forth in the definition of Unencumbered Asset Pool Properties.

 

“ Majority Owned Subsidiary ” shall mean a Consolidated Subsidiary which Consolidated Subsidiary is not a Wholly Owned Subsidiary but which Consolidated Subsidiary is controlled, directly or indirectly, by any of the Credit Parties.

 

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“ Margin Stock ” shall have the meaning provided such term in Regulation U.

 

“ Material Adverse Effect ” means a material adverse effect upon (i) the business, operations, properties or assets of the Credit Parties, taken as a whole, or (ii) the ability of the Credit Parties, taken as a whole, to perform its obligations hereunder and under the other Loan Documents in all material respects, including to pay interest and principal.

 

“ Material Plan ” means at any time a Plan or Plans having aggregate Unfunded Liabilities in excess of $5,000,000.

 

“ Materials of Environmental Concern ” means and includes pollutants, contaminants, hazardous wastes, toxic and hazardous substances, petroleum and petroleum by-products.

 

“ Maturity Date ” shall mean, subject to the provisions of Section 2.9(b), June 20, 2007.

 

“ Maximum Total Debt Ratio ” means the ratio as of the date of determination of (i) the sum of the aggregate Debt of the Consolidated Entities and their Minority Holdings (pro rata, in accordance with the Consolidated Entities’ interest in such Minority Holdings) at the time of determination to (ii) the Tangible FMV.

 

“ Minority Holdings ” means partnerships, limited liability companies and corporations held or owned, directly or indirectly, by any Consolidated Entity which are not consolidated with such Consolidated Entity on such Consolidated Entity’s financial statements.

 

“ Money Market Absolute Rate ” has the meaning set forth in Section 2.3(d).

 

“ Money Market Absolute Rate Loan ” means a loan made or to be made by a Bank pursuant to an Absolute Rate Auction.

 

“ Money Market Borrowing ” has the meaning set forth in Section 1.3.

 

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“ Money Market Lending Office ” means, as to each Bank, its Domestic Lending Office or such other office, branch or affiliate of such Bank as it may hereafter designate as its Money Market Lending Office by notice to the Borrower and the Administrative Agent; provided that any Bank may from time to time by notice to the Borrower and the Administrative Agent designate separate Money Market Lending Offices for its Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate Loans, on the other hand, in which case all references herein to the Money Market Lending Office of such Bank shall be deemed to refer to either or both of such offices, as the context may require.

 

“ Money Market LIBOR Loan ” means a loan made or to be made by a Bank pursuant to a LIBOR Auction (including such a loan bearing interest at the Alternate Base Rate pursuant to Section 2.3).

 

“ Money Market Loan ” means a Money Market LIBOR Loan or a Money Market Absolute Rate Loan.

 

“ Money Market Margin ” has the meaning set forth in Section 2.3.

 

“ Money Market Quote ” means an offer by a Bank to make a Money Market Loan in accordance with Section 2.3.

 

“ Money Market Quote Request ” has the meaning set forth in Section 2.3.

 

“ Moody’s ” means Moody’s Investors Service, Inc. or any successor thereto.

 

“ Multiemployer Plan ” means at any time an employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such five year period.

 

“ Net Offering Proceeds ” means all cash or other assets received by any of the Consolidated Entities as a result of the issuance of common stock, preferred stock, partnership interests, limited liability company interests, Convertible Securities or other ownership or equity interests

 

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in any of the Consolidated Entities less customary costs and discounts of issuance paid by such Consolidated Entities; provided that Net Offering Proceeds shall not include issuances of common stock or common beneficial interests for the sole purpose of conversion or redemption of convertible preferred stock or perpetual preferred stock or preferred beneficial interests.

 

“ Net Operating Cash Flow ” means, as of any date of determination, with respect to all Real Property Assets and Minority Holdings of the Consolidated Entities, the product of (A) in the case of all Real Property Assets of the Consolidated Entities, Property Income for the previous quarter, and in the case of Minority Holdings, the Consolidated Entities’ pro rata share thereof based upon their percentage of ownership interests, but less (x) Property Expenses (or in the case of Minority Holdings, the Consolidated Entities’ pro rata share thereof based upon their percentage of ownership interests) for the previous quarter and (y) the greater of (i) Capital Expenditures which are not related to new construction for the previous quarter (or in the case of Minority Holdings, the Consolidated Entities’ pro rata share thereof, based upon their percentage of ownership interests), and (ii) reserves for such quarter for CapEx for each Real Property Asset (or in the case of Minority Holdings, the Consolidated Entities’ pro rata share thereof, based upon their percentage of ownership interests), and (B) four (4).

 

“ Net Operating Income ” means as of any date of determination with respect to any Real Property Asset and any Minority Holdings of Consolidated Entities, the product of (A) Property Income for the previous quarter, but less Property Expenses for the previous quarter and (B) four (4).

 

“ New Acquisition ” has the meaning set forth in Section 5.15.

 

“ Non-Recourse Debt ” means Debt of any Person on a consolidated basis for which the right of recovery of the obligee thereof is limited to recourse against the Real Property Assets securing such Debt (subject to such limited exceptions to the non-recourse nature of such Debt such as fraud, misappropriation, misapplication and environmental indemnities, as are usual and customary in like transactions at the time of the incurrence of such Debt).

 

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“ Notes ” means collectively, Bank Notes and any Designated Lender Notes.

 

“ Notice of Borrowing ” means a Notice of Committed Borrowing (as defined in Section 2.2 and 2.3) or a Notice of Money Market Borrowing (as defined in Section 2.3(f)).

 

“ Notice of Interest Rate Election ” has the meaning set forth in Section 2.15 hereof.

 

“ Obligations ” means all obligations, liabilities and indebtedness of every nature of the Credit Parties, from time to time owing to any Bank under or in connection with this Agreement, the Guaranty or any other Loan Document, including, without limitation, (i) the outstanding principal amount of the Committed Loans at such time, plus (ii) the Letter of Credit Usage at such time, plus (iii) the outstanding principal amount of any Money Market Loans at such time.

 

“ Original Credit Agreement ” means the Credit Agreement, dated as of June 28, 2001, among CarrAmerica Corporation, as borrower, CarrAmerica LP, as guarantor, The Chase Manhattan Bank, as a Bank and Administrative Agent and the Banks listed therein.

 

“ Original Fronting Bank ” shall mean JPMorgan Chase Bank.

 

“ Outstanding Balance ” means the sum of (i) the aggregate outstanding and unpaid principal balance of all Committed Loans (ii) the aggregate outstanding and unpaid principal balance of all Money Market Loans and (iii) the Letter of Credit Usage.

 

“ Parent ” means, with respect to any Bank, any Person controlling such Bank.

 

“ Participant ” has the meaning set forth in Section 9.6 (b).

 

“ PBGC ” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

 

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“ Permitted Liens ” means (a) Liens in favor of any or all the Credit Parties on all or any part of the assets of Subsidiaries of the Credit Parties (collectively, “ Intercompany Liens ”), provided that (i) the Debt to which such Intercompany Lien relates is held by a Credit Party, (ii) such Debt is not otherwise pledged or encumbered and (iii) no more than 25% of the Unencumbered Asset Pool Properties Value may be subject to any such Intercompany Liens; (b) Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds, completion bonds, government contracts or other obligations of a like nature, including Liens in connection with workers’ compensation, unemployment insurance and other types of statutory obligations or to secure the performance of tenders, bids, leases, contracts (other than for the repayment of Debt) and other similar obligations incurred in the ordinary course of business; (c) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided , that any reserve or other appropriate provision as shall be required in conformity with GAAP shall have been made therefor; (d) Liens on property of any Consolidated Entity or any Subsidiary of any Consolidated Entity in favor of the Federal or any state government to secure certain payments pursuant to any contract, statute or regulation; (e) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights of way, covenants, consents, reservations, encroachments, variations and zoning and other restrictions, charges or encumbrances (whether or not recorded), which do not interfere materially with the ordinary conduct of the business of the applicable Consolidated Entity thereof and which do not materially detract from the value of the property to which they attach or materially impair the use thereof by the applicable Consolidated Entity; (f) statutory Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other Liens imposed by law and arising in the ordinary course of business, for sums not then due and payable (or which, if due and payable, are being contested in good faith and with respect to which adequate reserves are being maintained to the extent required by GAAP); (g)Liens not otherwise permitted by this definition and incurred in the ordinary course of business by any Consolidated Entity or any Subsidiary with respect to obligations which do not exceed $2,000,000 in principal amount in the aggregate at any one time outstanding; (h)

 

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Liens existing on the date of this Agreement which have been disclosed on Schedule 4.28 ; (i) the interests of lessees and lessors under leases of real or personal property made in the ordinary course of business which would not have a material adverse effect on any Consolidated Entity taken as a whole; and (j) judgment and attachment Liens not giving rise to an Event of Default.

 

“ Person ” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

 

“ Plan ” means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and either (i) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the preceding five years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time a member of the ERISA Group.

 

“ Prime Rate ” means the rate of interest publicly announced by the Administrative Agent from time to time as its prime rate.

 

“ Property Expenses ” means, when used with respect to any Real Property Asset or Minority Holdings of Consolidated Entities, the costs of maintaining and operating such Real Property Asset, calculated in accordance with GAAP, which are the responsibility of the owner thereof and that are not paid directly by the tenant thereof, including, without limitation, real estate taxes, insurance, repairs and maintenance, but provided that if such tenant is more than 60 days in arrears in the payment of base or fixed rent, then such costs will also constitute “Property Expenses”, but excluding depreciation, amortization and interest costs. With respect to Minority Holdings, Property Expenses shall be pro rated based upon the Consolidated Entities’ percentage ownership interest.

 

“ Property Income ” means, when used with respect to any Real Property Asset and Minority Holdings of Consolidated

 

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Entities, rents and other revenues earned in accordance with GAAP, in the ordinary course therefrom, including, without limitation, revenues from any parking leases and lease termination fees amortized over the remaining term of the lease for which such termination fee was received (other than the paid rents and revenues and security deposits except to the extent applied in satisfaction of tenants’ obligations for rent). With respect to Minority Holdings, Property Income shall be pro rated based upon the Consolidated Entities’ percentage ownership interest.

 

“ Qualified Development Property ” means any Unencumbered Asset Pool Property which is under construction and which, in accordance with GAAP, has not yet been placed into service, but as to which not less than 66.67% of net rentable leaseable area has been pre-leased to tenants other than tenants that are Affiliates of the Credit Parties, unless the same are approved by the Required Banks.

 

“ Rating Agencies ” means, collectively, S&P, Moody’s and Fitch.

 

“ Real Property Assets ” means as of any time, the real property assets (including interests in participating mortgages in which a Consolidated Entity’s interest therein is characterized as debt or equity according to GAAP) owned directly or indirectly by any Consolidated Entity at such time.

 

“ Recourse Debt ” means Debt of any Person on a consolidated basis for which the right of recovery of the obligee thereof is not limited to recourse against specific assets securing such Debt, if any (subject to such limited exceptions to the non-recourse nature of such Debt such as fraud, misappropriation, misapplication and environmental indemnities, as are usual and customary in like transactions at the time of the incurrence of such Debt).

 

“ Regulation U ” means Regulation U of the Federal Reserve Board, as in effect from time to time.

 

“ Reorganization ” shall have the meaning set forth in the Recitals.

 

“ Required Banks ” means, at any time Banks having at least 66 2/3% of the aggregate amount of the Commitments or,

 

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if the Commitments shall have been terminated, holding Notes evidencing at least 66 2/3% of the aggregate unpaid principal amount of the Committed Loans.

 

“ Secured Debt ” means Non-Recourse Debt that is secured by a Lien.

 

“ Solvent ” means, with respect to any Person, that the fair saleable value of such Person’s assets exceeds the Debts of such Person.

 

“ Stabilized Real Property Assets ” means, Real Property Assets in which 85% or more of the net leasable area is presently leased to tenants which are not Affiliates of any Consolidated Entity.

 

“ S&P ” means Standard & Poor’s Ratings Group, or any successor thereto.

 

“ Subsidiary ” means, with respect to a Person, any corporation, partnership, limited liability company or other entity of which securities, partnership interests, member interests or other ownership interests representing either (i) ordinary voting power to elect a majority of the board of directors or other persons performing similar functions or (ii) a majority of the economic interest therein, are at the time directly or indirectly owned by such Person.

 

“ Tangible FMV ” means the sum of (x) (i) with respect to Real Property Assets owned by the Consolidated Entities or Minority Holdings of a Consolidated Entity for a period of at least twelve months, the quotient of Net Operating Income with respect to such Real Property Assets determined as of the last day of the immediately preceding calendar quarter, less reserves for Capital Expenditures of $.50 per square foot per annum for each Real Property Asset owned as of the last day of such immediately preceding calendar quarter, the sum of which is capitalized at the FMV Cap Rate, and (ii) with respect to Real Property Assets owned by the Consolidated Entities or Minority Holdings of a Consolidated Entity for a period of less than twelve months, the purchase price of such Real Property Assets, (y) with respect to any Qualified Development Properties, costs incurred in connection therewith, and (z) Cash or Cash Equivalents of the Consolidated Entities only. Tangible FMV for Minority

 

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Holdings of any Consolidated Entity shall be determined on a pro rata basis based upon such Consolidated Entity’s ownership interest in such Minority Holdings.

 

“ Term ” has the meaning set forth in Section 2.9.

 

“ Unencumbered Asset Pool Entity ” shall mean collectively or individually, a Credit Party, a Wholly Owned Subsidiary and a Majority Owned Subsidiary.

 

“ Unencumbered Asset Pool Minimum Debt Service Coverage Ratio ” means the ratio calculated as of the last day of each calendar quarter of (x) Unencumbered Asset Pool Net Operating Cash Flow to (y) the product of (a) Debt Service on Unsecured Debt of the Unencumbered Asset Pool Entities for such calendar quarter and (b) four (4).

 

“ Unencumbered Asset Pool Net Operating Cash Flow ” means as of any date of determination with respect to the Unencumbered Asset Pool Properties, the product of (A) Property Income with respect to the Unencumbered Asset Pool Properties for the immediately preceding calendar quarter, less (x) Property Expenses with respect to the Unencumbered Asset Pool Properties for the immediately preceding calendar quarter and (y)reserves for CapEx for such immediately preceding calendar quarter for each Unencumbered Asset Pool Property, and (B) four (4). For purposes of Section 5.1(l), the calculation of Unencumbered Asset Pool Net Operating Cash Flow shall be made separately as to each Unencumbered Asset Pool Property.

 

“ Unencumbered Asset Pool Properties ” means, as of any date, (i) Stabilized Real Property Assets (a) which are 100% owned in fee or leasehold by an Unencumbered Asset Pool Entity and are not subject to any Lien (other than Permitted Liens) and (b) in the case of unencumbered Stabilized Real Property Assets which are 100% owned in fee or leasehold by a Wholly Owned Subsidiary or a Majority Owned Subsidiary, such Wholly Owned Subsidiary or Majority Owned Subsidiary does not have any Recourse Debt (other than Intercompany Liens that satisfy the limitations set forth in the definition of Permitted Liens), (ii) Real Property Assets 100% owned in fee or leasehold by an Unencumbered Asset Pool Entity which are not subject to any Lien (other than Permitted Liens) and are

 

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less than 85% leased to tenants (which shall include any space for which a lease termination payment has been made to the applicable Unencumbered Asset Pool Entity for which such payment shall cover the rental of such space); and (iii) Real Property Assets 100% owned in fee or leasehold by an Unencumbered Asset Pool Entity which are not subject to any Lien (other than Permitted Liens) and which are Qualified Development Properties; provided that (w) in the case of assets described in clause (ii) above, such assets do not exceed, in the aggregate, 20% of the Unencumbered Asset Pool Properties Value, (x) in the case of assets described in clause (iii) above, such assets do not exceed, in the aggregate, 10% of the Unencumbered Asset Pool Properties Value, (y) in the case of any assets held in leasehold, such leasehold is created pursuant to a “financeable” lease that has no less than 25 years remaining in its term and (z) in the case of assets described in clauses (i), (ii) or (iii) above, that are 100% owned in fee or leasehold by a Majority Owned Subsidiary, such assets do not exceed 15% of the Unencumbered Asset Pool Properties Value (the limitation described in clause (z) being the “ Majority Owned Asset Cap ”) and such Majority Owned Subsidiary does not have any Recourse Debt (other than Intercompany Liens that satisfy the limitations set forth in the definition of Permitted Liens).

 

“ Unencumbered Asset Pool Properties Value ” means the aggregate of (i) with respect to the Unencumbered Asset Pool Properties owned by an Unencumbered Asset Pool Entity for a period of at least twelve months, the quotient of (x) Net Operating Income with respect to the Unencumbered Asset Pool Properties less reserves for Capital Expenditures of $.50 per square foot per annum for each Unencumbered Asset Pool Property and (y) the FMV Cap Rate and (ii) with respect to the Unencumbered Asset Pool Properties owned by an Unencumbered Asset Pool Entity for a period of less than twelve months, the purchase price of such Unencumbered Asset Pool Property, and (iii) unrestricted Cash and Cash Equivalents in excess of $20,000,000 and (iv) with respect to any Qualified Development Property, the cost of such Qualified Development Property.

 

“ Unencumbered Leverage Ratio ” means the ratio, expressed as a percentage and calculated as of the end of each calendar quarter, of the aggregate amount of all

 

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Unsecured Debt (inclusive of the Loans) of the Unencumbered Asset Pool Entities to the Unencumbered Asset Pool Properties Value as of the date of determination.

 

“ Unfunded Liabilities ” means, with respect to any Plan at any time, the amount (if any) by which (i) the value of all benefit liabilities under such Plan, determined on a plan termination basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions), all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.

 

“ United States ” means the United States of America, including the States and the District of Columbia, but excluding its territories and possessions.

 

“ Unsecured Debt ” means all Debt which is not secured by a Lien.

 

“ Unused Commitments ” means an amount equal to all unadvanced funds (other than unadvanced funds in connection with any construction loan) which any third party is obligated to advance to a Person, pursuant to any loan document, written instrument or otherwise.

 

“ Wholly Owned Subsidiary ” means a corporation, partnership, limited liability company or other entity in which all the ownership interests are owned, directly or indirectly, by any of the Credit Parties; provided that for purposes of this definition only, Borrower shall be deemed not to be a Wholly-Owned Subsidiary of CarrAmerica Corporation.

 

SECTION 1.2. Accounting Terms and Determinations . Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP as in effect from time to time, applied on a

 

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basis consistent (except for changes concurred in by the Borrower’s independent public accountants) with the most recent audited consolidated financial statements of Borrower delivered to the Administrative Agent and the Banks; provided that, if Borrower notifies the Administrative Agent and the Banks that Borrower wishes to amend any covenant in Article V to eliminate the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies Borrower that the Required Banks wish to amend Article V for such purpose), then Borrower’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to Borrower and the Required Banks.

 

SECTION 1.3. Types of Borrowings . The term “Borrowing” denotes the aggregation of Loans of one or more Banks to be made to the Borrower pursuant to Article II on a single date and, except in the case of Alternate Base Rate Loans, for a single Interest Period. Borrowings are classified for purposes of this Agreement either by reference to the pricing of Committed Loans comprising such Borrowing ( e.g. , a “Euro-Dollar Borrowing” is a Borrowing comprised of Euro-Dollar Loans) or by reference to the provisions of Article II under which participation therein is determined ( i.e. , a “Committed Borrowing” is a Borrowing under Section 2.1 in which all Banks participate in proportion to their Commitments, while a “Money Market Borrowing” is a Borrowing under Section 2.3).

 

ARTICLE II

 

THE CREDITS

 

SECTION 2.1. Commitments to Lend . Each Bank severally agrees, on the terms and conditions set forth in this Agreement, to make the Committed Loans to Borrower and participate in Letters of Credit issued by the Fronting Bank on behalf of Borrower pursuant to Section 2.16 from time to time, during the Term in amounts such that the sum of (i) the aggregate principal amount of Committed Loans by such Bank at any one time outstanding, plus (ii) such Bank’s pro rata share of Letter of Credit Usage shall not exceed the amount of such Bank’s Commitment (in no event shall a Bank’s

 

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participation in a Money Market Loan reduce a Bank’s Commitment). The aggregate amount of Committed Loans to be made hereunder together with the aggregate pro rata share of principal amount of Money Market Loans participated in by such Bank (or its Designated Bank) and the Letter of Credit Usage shall not exceed the aggregate Commitments of the Banks. Each Committed Borrowing under this Section 2.1 shall be in an aggregate principal amount of at least $2,500,000, or an integral multiple of $1,000,000 in excess thereof (except that any such Borrowing may be in the aggregate amount available in accordance with Section 3.2(b)) and, other than with respect to Money Market Loans, shall be made from the several Banks ratably in proportion to their respective Commitments. Subject to the limitations set forth herein, any amounts repaid may be reborrowed. Notwithstanding anything to the contrary, the number of new Borrowings shall be limited to four Borrowings per month and no more than ten Borrowings shall be outstanding at any time.

 

SECTION 2.2. Notice of Committed Borrowing . (a) The Borrower shall give the Administrative Agent notice (a “ Notice of Committed Borrowing ”) not later than 10:00 a.m. (New York City time) (x) one Domestic Business Day before each Alternate Base Rate Borrowing or (y) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:

 

(i) the date of such Borrowing, which shall be a Domestic Business Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,

 

(ii) the aggregate amount of such Borrowing,

 

(iii) whether the Loans comprising such Borrowing are to be Alternate Base Rate Loans or Euro-Dollar Loans, and

 

(iv) in the case of a Euro-Dollar Borrowing, the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period.

 

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(b) Borrower shall give the Administrative Agent, and the designated Fronting Bank, written notice in the event that it desires to have Letters of Credit (each, a “ Letter of Credit ”) issued hereunder no later than 10:00 a.m., New York City time, at least four (4) Domestic Business Days prior to the date of such issuance. Each such notice shall specify (i) the designated Fronting Bank, (ii) the aggregate amount of the requested Letters of Credit, (iii) the individual amount of each requested Letter of Credit and the number of Letters of Credit to be issued, (iv) the date of such issuance (which shall be a Domestic Business Day), (v) the name and address of the beneficiary, (vi) the expiration date of the requested Letter of Credit (which in no event shall be later than thirty (30) days prior to the Maturity Date), (vii) the purpose and circumstances for which such Letter of Credit is being issued and (viii) the terms upon which each such Letter of Credit may be drawn down (which terms shall not leave any discretion to Fronting Bank). Each such notice may be revoked telephonically by the Borrower to the applicable Fronting Bank and the Administrative Agent any time prior to the date of issuance of the Letter of Credit by the applicable Fronting Bank, provided such revocation is confirmed in writing by Borrower to the Fronting Bank and the Administrative Agent within one (1) Domestic Business Day by facsimile. No later than 10:00 a.m., New York City time, on the date that is four (4) Domestic Business Days prior to the date of issuance, the Borrower shall specify a precise description of the documents and the verbatim text of any certificate to be presented by the beneficiary of such Letter of Credit, which if presented by such beneficiary prior to the expiration date of the Letter of Credit would require the Fronting Bank to make a payment under the Letter of Credit; provided that Fronting Bank may, in its reasonable judgment, require changes in any such documents and certificates only in conformity with changes in customary and commercially reasonable practice or law. Any Letter of Credit issued hereunder shall provide that payment shall be made against a conforming draft on the same Domestic Business Day that such draft is presented provided such presentation is made to the Fronting Bank on or before 10:00 A.M. New York City time of such Domestic Business Day; if such presentation is made later than 10:00 A.M. New York City time, then payment shall be made against such conforming draft on the following Domestic Business Day. In determining whether to pay on such

 

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Letter of Credit or Existing Letter of Credit, as applicable, the Fronting Bank shall be responsible only to determine that the documents and certificates required to be delivered under the Letter of Credit or Existing Letter of Credit, as applicable, have been delivered and that they comply on their face with the requirements of that Letter of Credit or Existing Letter of Credit, as applicable.

 

SECTION 2.3. Money Market Borrowings .

 

(a) The Money Market Option . In addition to Committed Borrowings pursuant to Section 2.1 and Section 2.2 hereof, the Borrower as set forth in this Section and provided that at the time Borrower shall have two Investment Grade Ratings (at least one of which shall be from S&P or Moody’s) may request the Banks at any time or from time to time during the Term to make offers to make Money Market Loans to Borrower not to exceed, at such time, the lesser of (i) an amount equal to fifty percent (50%) of the aggregate Commitments and (ii) the aggregate Commitments, less all Loans then outstanding (excluding any Committed Loans or any portion thereof to be repaid from the proceeds of such Money Market Loans) plus the Letter of Credit Usage. Subject to the provisions of this Agreement, the Borrower may repay any outstanding Money Market Loan on any day which is a Euro-Dollar Business Day, in the case of a LIBOR Auction, or a Domestic Business Day in the case of an Absolute Rate Auction and any amounts so repaid may be reborrowed, up to the amount available under this Section 2.3 at the time of such Borrowing, until the fourteenth (14 ^th ) day next preceding the Maturity Date. Each Money Market Loan included in any Money Market Borrowing shall mature, and the principal amount thereof shall be due and payable, together with accrued interest thereon, on the earlier to occur of (i) the last day of the Interest Period applicable to such Borrowing or (ii) the Maturity Date. The Banks may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section.

 

(b) Money Market Quote Request . When the Borrower wishes to request offers to make Money Market Loans under this Section, it shall transmit to the Administrative Agent by facsimile transmission a request for Money Market Quotes

 

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substantially in the form of Exhibit D hereto (a “ Money Market Quote Request ”) so as to be received not later than 10:30 A.M. (New York City time) on (x) the fourth Euro-Dollar Business Day prior to the date of Borrowing proposed therein, in the case of a LIBOR Auction or (y) the Domestic Business Day next preceding the date of Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in either case, such other time or date as the Borrower and the Administrative Agent shall have mutually agreed and shall have notified to the Banks not later than the date of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be effective) specifying:

 

(i) the proposed date of Borrowing, which shall be a Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic Business Day in the case of an Absolute Rate Auction,

 

(ii) the aggregate amount of such Borrowing, which shall be $10,000,000 or a larger multiple of $500,000,

 

(iii) the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period, and

 

(iv) whether the Money Market Quotes requested are to set forth a Money Market Margin or a Money Market Absolute Rate.

 

The Borrower may request offers to make Money Market Loans for up to four Interest Periods in a single Money Market Quote Request. No Money Market Quote Request shall be given within five Euro-Dollar Business Days of any other Money Market Quote Request.

 

(c) Invitation for Money Market Quotes . Promptly upon receipt of a Money Market Quote Request, but no later than 1:00 p.m. (New York City time) on (i) the fourth Euro-Dollar Business Day prior to the proposed date of Borrowing, or (ii) the Domestic Business next preceding the date of the proposed Borrowing, the Administrative Agent shall send to the Banks by facsimile transmission an Invitation for Money

 

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Market Quotes substantially in the form of Exhibit E hereto (an “ Invitation for Money Market Quotes ”), which shall constitute an invitation by the Borrower to each Bank to submit Money Market Quotes offering to make the Money Market Loans to which such Money Market Quote Request relates in accordance with this Section.

 

(d) Submission and Contents of Money Market Quotes . (i) Each Bank may submit a Money Market Quote containing an offer or offers to make Money Market Loans in response to any Invitation for Money Market Quotes. Each Money Market Quote must comply with the requirements of this subsection (d) and must be submitted to the Administrative Agent by facsimile transmission at its offices specified in or pursuant to Section 9.1 not later than (x) 10:00 A.M. (New York City time) on the third Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) 10:00 A.M. (New York City time) on the proposed date of Money Market Borrowing, in the case of an Absolute Rate Auction; provided that Money Market Quotes submitted by the Administrative Agent (or any affiliate of the Administrative Agent) in its capacity as a Bank may be submitted, and may only be submitted, if the Administrative Agent or such affiliate notifies the Borrower of the terms of the offer or offers contained therein not later than fifteen (15) minutes prior to the applicable deadline for the other Banks. Subject to Articles III and VI, any Money Market Quote so made shall be irrevocable. Such Money Market Loans may be funded by such Bank’s Designated Lender (if any) as provided in Section 9.6(d), however such Bank shall not be required to specify in its Money Market Quote whether such Money Market Loans will be funded by such Designated Lender.

 

(ii) Each Money Market Quote shall be in substantially the form of Exhibit F hereto and shall in any case specify:

 

(1) the proposed date of Borrowing,

 

(2) the principal amount of the Money Market Loan for which each such offer is being made, which principal amount (w) may be greater than or less than the Commitment of the quoting Bank, (x) must be $10,000,000 or a larger multiple

 

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of $500,000, (y) may not exceed the principal amount of Money Market Loans for which offers were requested and (z) may be subject to an aggregate limitation as to the principal amount of Money Market Loans for which offers being made by such quoting Bank may be accepted,

 

(3) in the case of a LIBOR Auction, the margin above or below the applicable London Interbank Offered Rate (the “ Money Market Margin ”) offered for each such Money Market Loan, expressed as a percentage (specified to the nearest 1/10,000th of 1%) to be added to or subtracted from the applicable London Interbank Offered Rate,

 

(4) in the case of an Absolute Rate Auction, the rate of interest per annum (specified to the nearest 1/10,000th of 1%) (the “ Money Market Absolute Rate ”) offered for each such Money Market Loan, and

 

(5) the identity of the quoting Bank.

 

A Money Market Quote may set forth up to five separate offers by the quoting Bank with respect to each Interest Period specified in the related Invitation for Money Market Quotes.

 

(iii) Any Money Market Quote shall be disregarded if it:

 

(1) is not substantially in conformity with Exhibit F hereto or does not specify all of the information required by subsection (d)(ii) above;

 

(2) contains qualifying, conditional or similar language;

 

(3) proposes terms other than or in addition to those set forth in the applicable Invitation for Money Market Quotes; or

 

(4) arrives after the time set forth in subsection (d)(i).

 

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(e) Notice to Borrower . The Administrative Agent shall promptly notify the Borrower (x) with respect to each Money Market Quote submitted in accordance with subsection (d), of the terms of such Money Market Quote and the identity of the Bank submitting such Money Market Quote and (y) of any Money Market Quote that amends, modifies or is otherwise inconsistent with a previous Money Market Quote submitted by such Bank with respect to the same Money Market Quote Request. Any such subsequent Money Market Quote shall be disregarded by the Administrative Agent unless such subsequent Money Market Quote is submitted solely to correct a manifest error in such former Money Market Quote. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of Money Market Loans for which Money Market Quotes have been received for each Interest Period specified in the related Money Market Quote Request, (B) the respective principal amounts and Money Market Margins or Money Market Absolute Rates, as the case may be, so offered and (C) if applicable, limitations on the aggregate principal amount of Money Market Loans for which offers in any single Money Market Quote may be accepted.

 

(f) Acceptance and Notice by Borrower . Not later than 11:00 A.M. (New York City time) on (x) the third Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in either case, such other time or date as the Borrower and the Administrative Agent shall have mutually agreed and shall have notified the Banks not later than the date of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be effective), the Borrower shall notify the Administrative Agent of its acceptance or non-acceptance of the Money Market Quotes specified in the Administrative Agent’s notice to the Borrower pursuant to subsection (e). In the case of acceptance, such notice (a “ Notice of Money Market Borrowing ”) shall specify the aggregate principal amount of offers for each Interest Period that are accepted. The Borrower may accept any Money Market Quote in whole or in part; provided that:

 

(i) the aggregate principal amount of each Money Market Borrowing may not exceed the applicable amount set forth in the related Money Market Quote Request;

 

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(ii) the principal amount of each Money Market Borrowing must be $10,000,000 or a larger multiple of $500,000;

 

(iii) acceptance of offers may only be made on the basis of ascending Money Market Margins or Money Market Absolute Rates, as the case may be; and

 

(iv) the Borrower may not accept any Money Market Quote that is described in subsection (d)(iii) or that otherwise fails to comply with the requirements of this Agreement.

 

For the purposes of Section 2.1 hereof, all Money Market Loans made on the same date of Borrowing for the same Interest Period shall constitute a single Money Market Borrowing.

 

(g) Allocation by Administrative Agent . If Money Market Quotes are made by two or more Banks with the same Money Market Margins or Money Market Absolute Rates, as the case may be, for a greater aggregate principal amount than the amount in respect of which such Money Market Quotes are accepted for the related Interest Period, the principal amount of Money Market Loans in respect of which such Money Market Quotes are accepted shall be allocated by the Administrative Agent among such Banks as nearly as possible (in multiples of $500,000, as the Administrative Agent may deem appropriate) in proportion to the aggregate principal amounts of such Money Market Quotes. Determinations by the Administrative Agent of the amounts of Money Market Loans shall be conclusive in the absence of manifest error.

 

(h) Notification by Administrative Agent . Upon receipt of a Notice of Money Market Borrowing in accordance with Section 2.3(f) hereof, the Administrative Agent shall, on the date such Notice of Money Market Borrowing is received by the Administrative Agent, notify each Bank of the principal amount of the Money Market Borrowing accepted by the Borrower and of such Bank’s share (if any) of such Money

 

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Market Borrowing and such Notice of Money Market Borrowing shall not thereafter be revocable by the Borrower or the Bank. Competitive bid results without attributes will be delivered by the Administrative Agent to each Bank submitting a Money Market Quote. A Bank who is notified that it has been selected to make a Money Market Loan may designate its Designated Lender (if any) to fund such Money Market Loan on its behalf, as described in Section 9.6(d). Any Designated Lender which funds a Money Market Loan shall on and after the time of such funding become the obligee in respect of such Money Market Loan and be entitled to receive payment thereof when due. No Bank shall be relieved of its obligation to fund a Money Market Loan, and no Designated Lender shall assume such obligation, prior to the time the applicable Money Market Loan is funded.

 

SECTION 2.4. Notice to Banks; Funding of Loans .

 

(a) Upon receipt of a Notice of Committed Borrowing, the Administrative Agent shall notify each Bank on the same day as it receives such Notice of Committed Borrowing of the contents thereof and of such Bank’s share of such Borrowing and such Notice of Committed Borrowing shall not thereafter be revocable by the Borrower.

 

(b) Not later than 12:00 noon. (New York City time) on the date of each Committed Borrowing as indicated in the Notice of Committed Borrowing, each Bank shall (except as provided in subsection (c) of this Section) make available its share of such Borrowing, in Federal or other funds immediately available in New York City, to the Administrative Agent at its address referred to in Section 9.1. The Administrative Agent will make the funds so received from the Banks available to the Borrower at the Administrative Agent’s aforesaid address. If the Borrower has requested the issuance of a Letter of Credit, no later than 12:00 Noon (New York City time) on the date of such issuance as indicated in the Notice of Committed Borrowing, the Fronting Bank shall issue such Letter of Credit in the amount so requested and deliver the same to the Borrower with a copy thereof to the Administrative Agent. Immediately upon the issuance of each Letter of Credit by the Fronting Bank (or upon the Closing Date, with respect to Existing Letters of Credit), such Fronting Bank shall be deemed to have sold and transferred to

 

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each other Bank, and each such other Bank shall be deemed to, and hereby agrees to, have irrevocably and unconditionally purchased and received from Fronting Bank, without recourse or warranty, an undivided interest and a participation in such Letter of Credit or Existing Letter of Credit, as applicable, any drawing thereunder, and the obligations of the Borrower hereunder with respect thereto, and any security therefor or guaranty pertaining thereto, in an amount equal to such Bank’s ratable share thereof (based upon the ratio its Commitment bears to the aggregate of all Commitments). Upon any change in any of the Commitments in accordance herewith, there shall be an automatic adjustment to such participations to reflect such changed shares. The Fronting Bank shall have the primary obligation to fund any and all draws made with respect to such Letter of Credit or Existing Letter of Credit, as applicable, notwithstanding any failure of a participating Bank to fund its ratable share of any such draw. The Administrative Agent will instruct the Fronting Bank to make such Letter of Credit available to the Borrower and the Fronting Bank shall make such Letter of Credit available to the Borrower at the Borrower’s aforesaid address on the date of issuance thereof.

 

(c) Unless the Administrative Agent shall have received notice from a Bank prior to the date of any Borrowing that such Bank will not make available to the Administrative Agent such Bank’s share of such Borrowing, the Administrative Agent may assume that such Bank has made such share available to the Administrative Agent on the date of such Borrowing in accordance with subsection (b) of this Section 2.4 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Bank shall not have so made such share available to the Administrative Agent, such Bank and the Borrower agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the interest rate applicable thereto pursuant to Section 2.7 and (ii) in the case of such Bank, the Federal Funds Rate. If such Bank shall repay to the Administrative Agent such

 

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corresponding amount, such amount so repaid shall constitute such Bank’s Loan included in such Borrowing for purposes of this Agreement as of the date of such Borrowing.

 

SECTION 2.5. Notes .

 

(a) The Loans shall be evidenced by the Bank Notes, each of which shall be payable to the order of each Bank for the account of its Applicable Lending Office in an amount equal to each such Bank’s Commitment.

 

(b) Each Bank may, by notice to the Borrower and the Administrative Agent, request that its Loans of a particular type be evidenced by a separate Note in an amount equal to the aggregate unpaid principal amount of such Loans. Each such Bank Note shall be in substantially the form of Exhibit A-1 with appropriate modifications to reflect the fact that it evidences solely Loans of the relevant type. Each reference in this Agreement to the “ Bank Note ” of such Bank shall be deemed to refer to and include any or all of such Bank Notes, as the context may require.

 

(c) Upon receipt of each Bank’s Bank Note pursuant to Section 3.1(a), the Administrative Agent shall forward such Bank Note to such Bank. Each Bank shall record the date, amount, type and maturity of each Loan made by it and the date and amount of each payment of principal made by Borrower with respect thereto, and may, if such Bank so elects in connection with any transfer or enforcement of its Bank Note, endorse on the schedule forming a part thereof appropriate notations to evidence the foregoing information with respect to each such Loan then outstanding; provided that the failure of any Bank to make any such recordation or endorsement shall not affect the obligations of the Borrower hereunder or under the Bank Notes. Each Bank is hereby irrevocably authorized by the Borrower to endorse its Bank Note and to attach to and make a part of its Bank Note a continuation of any such schedule as and when required.

 

(d) There shall be no more than ten (10) Euro-Dollar Borrowings and Money Market Borrowings outstanding at any one time pursuant to this Agreement.

 

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SECTION 2.6. Maturity of Loans . The Loans shall mature, and the principal amount thereof shall be due and payable, on the Maturity Date.

 

SECTION 2.7. Interest Rates .

 

(a) Each Alternate Base Rate Loan shall bear interest on the outstanding principal amount thereof, for each day from the date such Loan is made until it becomes due, at a rate per annum equal to the sum of the Applicable Margin for Alternate Base Rate Loans for such day plus the Alternate Base Rate for such day. Such interest shall be payable monthly in arrears on the last Domestic Business Day of each calendar month and on the earlier to occur of the Maturity Date or the date of the termination of the facility in accordance with the terms hereof.

 

(b) Each Euro-Dollar Loan shall bear interest on the outstanding principal amount thereof, for each day during the Interest Period applicable thereto, at a rate per annum equal to the sum of the Applicable Margin for Euro-Dollar Loans for such day plus the Adjusted London Interbank Offered Rate applicable to such Interest Period. Such interest shall be payable for each Interest Period on the last day thereof and, if such Interest Period is longer than three months, at intervals of three months after the first day thereof.

 

“ Adjusted London Interbank Offered Rate ” applicable to any Interest Period means a rate per annum equal to the quotient obtained (rounded upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.

 

“ Euro-Dollar Reserve Percentage ” means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Federal Reserve System (or any successor) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in New York City with deposits exceeding five billion dollars in respect of “Eurocurrency liabilities” (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Euro-Dollar Loans is determined or any category of extensions of credit or other

 

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assets which includes loans by a non-United States office of any Bank to United States residents). The Adjusted London Interbank Offered Rate shall be adjusted automatically on and as of the effective date of any change in the Euro-Dollar Reserve Percentage.

 

“ London Interbank Offered Rate ” applicable to any Interest Period, means a rate per annum equal to the rate for Dollar deposits with maturities comparable to the applicable Interest Period which appears on Telerate Page 3750 as of 11:00 a.m., London time, on the applicable date; provided , however , if such rate does not appear on Telerate Page 3750, the “London Interbank Offered Rate” applicable to a particular Interest Period shall mean a rate per annum equal to the rate at which deposits in Dollars in an amount approximately equal to the applicable Euro-Dollar Loan(s), and with maturities comparable to the last day of the Interest Period with respect to which such London Interbank Offered Rate is applicable, are offered in immediately available funds in the London interbank market to the London office of the Administrative Agent by leading banks in the Dollar market at 11:00 a.m., London time on the applicable date.

 

(c) Subject to Section 8.1, each Money Market LIBOR Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the sum of the London Interbank Offered Rate for such Interest Period (determined in accordance with Section 2.7(b) as if the related Money Market LIBOR Loan were a Euro-Dollar Loan) plus (or minus) the Money Market Margin quoted by the Bank making such Loan in accordance with Section 2.3. Each Money Market Absolute Rate Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the Money Market Absolute Rate quoted by the Bank making such Loan in accordance with Section 2.3. Such interest shall be payable for each Interest Period on the last day thereof and, if such Interest Period is longer than ninety days, at intervals of ninety days after the first day thereof.

 

(d) In the event that, and for so long as, any Event of Default shall have occurred and be continuing, the

 

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outstanding principal amount of the Loans, and, to the extent permitted by law, overdue interest in respect of all Loans, shall bear interest at the annual rate of the sum of the Alternate Base Rate and four percent (4%).

 

(e) The Administrative Agent shall determine each interest rate applicable to the Loans (other than Money Market Loans) hereunder. The Administrative Agent shall give prompt notice to the Borrower and the Banks of each rate of interest so determined, and its determination thereof shall be conclusive in the absence of manifest error.

 

SECTION 2.8. Fees .

 

(a) Facility Fee . Effective as of the date hereof, during the Term, the Borrower shall pay to the Administrative Agent for the account of the Banks ratably in proportion to their respective Commitments a facility fee (a “ Facility Fee ”) on the aggregate Commitments at the Applicable Fee Percentage. The Facility Fee shall be computed on the aggregate Commitments on the basis of a fraction, the denominator of which shall be 365 or 366 (based upon the actual number of days in such calender year) and the numerator of which shall be the actual number of days in the relevant calendar quarter (including the first day in such quarter but excluding the last day in such quarter). The Facility Fee shall be payable in arrears on the first Domestic Business Day of each calendar quarter and at the Maturity Date or earlier termination of the Facility in accordance with the terms hereof.

 

(b) Letter of Credit Fee . During the Term, the Borrower shall pay to the Administrative Agent, for the account of the Banks ratably in proportion to their respective interests in issued and undrawn Letters of Credit and Existing Letters of Credit, a fee (a “ Letter of Credit Fee ”) in an amount, provided that no Event of Default shall have occurred and be continuing, equal to a rate per annum equal to the Applicable Margin for Euro-Dollar Loans on the daily average of such issued and undrawn Letters of Credit and Existing Letters of Credit, which fee shall be payable, in arrears, on the first Domestic Business Day of each calendar quarter during the Term and at the Maturity Date or earlier termination of the facility in accordance with the terms

 

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hereof. The Letter of Credit Fee shall be computed on the aggregate amount of issued and undrawn Letters of Credit and Existing Letters of Credit on the basis of a fraction, the denominator of which shall be 360 and the numerator of which shall be the actual number of days in the relevant calendar quarter (including the first day in such quarter but excluding the last day in such quarter). From the occurrence, and during the continuance, of an Event of Default, such fee shall be increased to be equal to four percent (4%) per annum on the daily average amount of such issued and undrawn Letters of Credit and Existing Letters of Credit.

 

(c) Fronting Bank Fee . The Borrower shall pay any Fronting Bank, for its own account, a fee (a “ Fronting Bank Fee ”) at a rate per annum equal to .15% of the issued and undrawn amount of such Letters of Credit or Existing Letters of Credit, as applicable, which fee shall be in addition to and not in lieu of, the Letter of Credit Fee. The Fronting Bank Fee shall be payable in arrears on the first Domestic Business Day of each calendar quarter during the Term and at the Maturity Date or earlier termination of the facility in accordance with the terms hereof. The Fronting Bank Fee shall be computed on the aggregate amount of issued and undrawn Letters of Credit or Existing Letters of Credit, as applicable, on the basis of a fraction, the denominator of which shall be 360 and the numerator of which shall be the actual number of days in the relevant calendar quarter (including the first day in such quarter but excluding the last day in such quarter)

 

(d) Fees Non-Refundable . All fees set forth in this Section 2.8 shall be deemed to have been earned on the date payment is due in accordance with the provisions hereof and shall be non-refundable. The obligation of the Borrower to pay such fees in accordance with the provisions hereof shall be binding upon the Borrower and shall inure to the benefit of the Administrative Agent, Fronting Bank and the Banks, as applicable, regardless of whether any Loans are actually made.

 

SECTION 2.9. Maturity Date; Extension .

 

(a) The term (the “ Term ”) of the Commitments (and each Bank’s obligations to make Loans hereunder) shall

 

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terminate and expire on the Maturity Date, subject, however, to the provisions of Subsection 2.9(b) hereof.

 

(b) Borrower shall have one option (the “ Extension Option ”) to extend the Maturity Date, for an additional twelve (12) month period (the “ Extension Term ”), upon the following terms and conditions: (i) delivery by Borrower of written notice thereof to the Administrative Agent (the “ Extension Notice ”) on or before the date which shall not be earlier than ninety (90) days nor later than sixty (60) days prior to the current Maturity Date (which Extension Notice, the Administrative Agent shall promptly deliver to the Banks); (ii) no Default or Event of Default shall have occurred and be continuing both on the date Borrower delivers the Extension Notice to the Administrative Agent and on the first day of the Extension Term (the “ Extension Date ”); (iii) each of the representations and warranties of Borrower contained in this Agreement (other than representations and warranties which expressly speak of a different date) shall be true and correct in all material respects on and as of the Extension Date; and (iv) on the day immediately preceding the first day of the Extension Term, Borrower shall pay to the Administrative Agent, for the account of the Banks the Extension Fee (the payment of the Extension Fee on such date being a condition precedent to the Extension Term). Borrower’s delivery of the Extension Notice shall be irrevocable.

 

(c) Upon the date of the termination of the Term, any Loans then outstanding (together with accrued interest thereon and all other Obligations) shall be due and payable on such date.

 

SECTION 2.10. Mandatory Prepayment .

 

(a) Intentionally Omitted.

 

(b) In the event that an Unencumbered Asset Pool Property is sold or released from the restrictions of Section 5.14 hereof, in accordance with this Agreement, the Borrower shall, if necessary, simultaneously with such sale or release, prepay to the Administrative Agent, for the account of the Banks, an amount equal to the amount required such that the Loan remain in compliance with Sections 5.8(d) and (g) and 5.19, as the case may be, after such sale or release.

 

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Notwithstanding the foregoing, a simultaneous like-