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8-K - FORM 8-K - Cogdell Spencer Inc.c13760e8vk.htm
Exhibit 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
Dated March 1, 2011
among
COGDELL SPENCER LP,
as Borrower,
COGDELL SPENCER INC.,
as a Guarantor,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
KEYBANK NATIONAL ASSOCIATION,
as Syndication Agent,
BRANCH BANKING AND TRUST COMPANY,
CITICORP NORTH AMERICA, INC.,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents,
and
THE OTHER LENDERS PARTY HERETO
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
KEYBANC CAPITAL MARKETS
as
Joint Lead Arrangers and Joint Bookrunners

 

 


 

TABLE OF CONTENTS
         
    Page  
 
       
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
    1  
1.01 Amendment and Restatement; Allocations
    1  
1.02 Defined Terms
    2  
1.03 Other Interpretive Provisions
    35  
1.04 Accounting Terms
    36  
1.05 Rounding
    36  
1.06 Times of Day
    36  
1.07 Letter of Credit Amounts
    36  
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
    37  
2.01 Committed Loans
    37  
2.02 Borrowings, Conversions and Continuations of Committed Loans
    37  
2.03 Letters of Credit
    38  
2.04 Swing Line Loans
    46  
2.05 Prepayments
    49  
2.06 Termination or Reduction of Commitments
    49  
2.07 Repayment of Loans
    49  
2.08 Interest
    50  
2.09 Fees
    51  
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
    51  
2.11 Evidence of Debt
    52  
2.12 Payments Generally; Agent’s Clawback
    52  
2.13 Sharing of Payments
    54  
2.14 Increase in Commitments
    54  
2.15 Extension of Maturity Date
    55  
2.16 Cash Collateral
    57  
2.17 Defaulting Lenders
    58  
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
    60  
3.01 Taxes
    60  
3.02 Illegality
    62  
3.03 Inability to Determine Rates
    62  
3.04 Increased Costs
    62  

 

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TABLE OF CONTENTS
         
    Page  
 
       
3.05 Compensation for Losses
    64  
3.06 Mitigation Obligations; Replacement Lenders
    64  
3.07 Survival
    65  
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
    65  
4.01 Conditions of Effective Date
    65  
4.02 Conditions to all Credit Extensions
    67  
ARTICLE V. REAFFIRMATION OF CSI GUARANTY
    68  
5.01 CSI Guaranty
    68  
5.02 Payment
    68  
5.03 Guaranty Absolute
    68  
5.04 Reinstatement
    70  
5.05 Waiver; Subrogation
    70  
5.06 Waiver of Set-Off
    71  
ARTICLE VA. SECURITY
    71  
5A.01 Security
    71  
5A.02 Further Assurances
    71  
5A.03 Information Regarding Collateral
    72  
5A.04 Borrowing Base
    72  
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
    74  
6.01 Existence, Qualification and Power; Compliance with Laws
    74  
6.02 Authorization; No Contravention
    75  
6.03 Governmental Authorization; Other Consents
    75  
6.04 Binding Effect
    75  
6.05 Financial Statements; No Material Adverse Effect
    75  
6.06 Litigation
    76  
6.07 No Default
    76  
6.08 Ownership of Property; Liens
    76  
6.09 Environmental Compliance
    76  
6.10 Insurance
    76  
6.11 Taxes
    77  
6.12 ERISA Compliance
    77  

 

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TABLE OF CONTENTS
         
    Page  
 
       
6.13 Subsidiaries
    77  
6.14 Margin Regulations; Investment Company Act
    78  
6.15 Disclosure
    78  
6.16 Compliance with Laws
    78  
6.17 Intellectual Property; Licenses, Etc
    78  
6.18 Solvency
    78  
6.19 REIT Status
    78  
6.20 Ground Leases; Appraised Value; Net Operating Income; Existing Surveys
    79  
ARTICLE VII. AFFIRMATIVE COVENANTS
    79  
7.01 Financial Statements
    79  
7.02 Certificates; Other Information
    80  
7.03 Notices
    82  
7.04 Payment of Obligations
    82  
7.05 Preservation of Existence, Etc
    83  
7.06 Maintenance of Properties
    83  
7.07 Maintenance of Insurance
    83  
7.08 Compliance with Laws
    83  
7.09 Books and Records
    83  
7.10 Inspection Rights
    84  
7.11 Use of Proceeds
    84  
7.12 Financial Covenants
    84  
7.13 Additional Guarantors
    85  
7.14 REIT Qualification; Listing on Securities Exchange
    85  
7.15 Ownership of Borrower
    85  
7.16 Borrowing Base Requirements
    85  
7.17 Post-closing Surveys
    86  
7.18 Post-Effectiveness Obligations
    86  
ARTICLE VIII. NEGATIVE COVENANTS
    86  
8.01 Liens
    86  
8.02 Investments
    87  
8.03 Indebtedness
    88  

 

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TABLE OF CONTENTS
         
    Page  
 
       
8.04 Fundamental Changes
    89  
8.05 Dispositions
    89  
8.06 Restricted Payments
    90  
8.07 Change in Nature of Business
    91  
8.08 Transactions with Affiliates
    91  
8.09 Burdensome Agreements
    91  
8.10 Use of Proceeds
    92  
8.11 Amendments to Organization Documents
    92  
ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES
    92  
9.01 Events of Default
    92  
9.02 Remedies Upon Event of Default
    94  
9.03 Application of Funds
    95  
ARTICLE X. ADMINISTRATIVE AGENT
    96  
10.01 Appointment and Authorization of Administrative Agent
    96  
10.02 Rights as a Lender
    96  
10.03 Exculpatory Provisions
    96  
10.04 Reliance by Administrative Agent
    97  
10.05 Delegation of Duties
    97  
10.06 Resignation of Agent
    98  
10.07 Non-Reliance on Agent and Other Lenders
    98  
10.08 No Other Duties, Etc
    99  
10.09 Administrative Agent May File Proofs of Claim
    99  
10.10 Collateral and Guaranty Matters
    99  
10.11 Secured Cash Management Agreements and Secured Hedging Agreements
    100  
ARTICLE XI. MISCELLANEOUS
    100  
11.01 Amendments, Etc
    100  
11.02 Notices; Effectiveness; Electronic Communications
    102  
11.03 No Waiver; Cumulative Remedies
    104  
11.04 Expenses; Indemnity; Damage Waiver
    104  
11.05 Payments Set Aside
    106  
11.06 Successors and Assigns
    106  

 

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TABLE OF CONTENTS
         
    Page  
 
       
11.07 Treatment of Certain Information; Confidentiality
    111  
11.08 Right of Setoff
    111  
11.09 Interest Rate Limitation
    112  
11.10 Counterparts; Integration; Effectiveness
    112  
11.11 Survival of Representations and Warranties
    112  
11.12 Severability
    112  
11.13 Replacement of Lenders
    113  
11.14 Governing Law; Jurisdiction; Etc
    113  
11.15 Waiver of Right to Trial by Jury
    114  
11.16 No Advisory or Fiduciary Responsibility
    114  
11.17 USA PATRIOT Act Notice
    115  
11.18 Waiver of Appraisal Rights
    115  

 

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SCHEDULES
     
A
  Existing Loans
1.01(a)
  Existing Borrowing Base Properties
1.01(b)
  Existing Eligible Properties
1.01(c)
  Existing Letters of Credit
1.01(d)
  Existing Pledged Properties
2.01
  Commitments and Applicable Percentages
5A.03
  Collateral Information
5A.04(a)
  Appraisal Requirements
5A.04(b)
  Borrowing Base Properties
6.06
  Litigation
6.09
  Environmental Matters
6.13
  Subsidiaries and Other Equity Investments
6.20
  Existing Surveys
7.17
  Post Closing Surveys
8.01
  Existing Liens
8.03
  Existing Indebtedness
11.02
  Administrative Agent’s Office, Certain Addresses for Notices
EXHIBITS
     
Form of    
A
  Committed Loan Notice
B
  Swing Line Loan Notice
C-1
  Note
C-2
  Amended and Restated Note
D
  Available Amount Certificate
E
  Compliance Certificate
F
  Assignment and Assumption
G
  Guaranty
H
  Eligible Property Compliance Certificate
I
  Estoppel Certificate
J-1
  Subordination, Nondisturbance and Attornment Agreement
J-2
  Reaffirmation and Amendment to Subordination, Non-Disturbance and Attornment Agreement
K
  Opinion of Special Counsel
L-1
  Consent and Agreement Regarding Performance Under Ground Lease
L-2
  Affirmation of, and Amendment to, Landlord’s Consent and Agreement Regarding Performance under Ground Lease
M
  Environmental Indemnity Agreement
N
  Mortgage

 

vi


 

AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into effective as of March 1, 2011, among COGDELL SPENCER LP, a Delaware limited partnership (“Borrower”), COGDELL SPENCER INC., a Maryland corporation (“CSI”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
RECITALS
A. The Borrower, CSI, the lenders party thereto (the “Existing Lenders”) and Bank of America, as Administrative Agent thereunder, are parties to that certain Credit Agreement dated as of March 10, 2008 (the “Existing Credit Agreement”).
B. The Borrower has requested that the Existing Credit Agreement be amended and restated on the terms and conditions contained in this Agreement.
C. The Borrower, CSI, the Lenders and the Administrative Agent have agreed to and desire to amend and restate the Existing Credit Agreement on the terms and conditions set forth in this Agreement (the “Amendment and Restatement”).
AGREEMENT
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Amendment and Restatement; Allocations. In order to facilitate the Amendment and Restatement and otherwise to effectuate the desires of the Borrower, the Lenders, the Administrative Agent, the L/C Issuer and the Swing Line Lender:
(a) The Borrower and each other Loan Party, the Lenders, the Administrative Agent, the L/C Issuer and the Swing Line Lender hereby agree that upon the effectiveness of this Agreement, the terms and provisions of the Existing Credit Agreement which in any manner govern or evidence the Obligations, the obligations of the Borrower and each other Loan Party, the rights and interests of the Lenders, the Administrative Agent, the L/C Issuer and the Swing Line Lender and any terms, conditions or matters related to any thereof, shall be and hereby are amended and restated in their entirety by the terms, conditions and provisions of this Agreement, and the terms and provisions of the Existing Credit Agreement, except as otherwise expressly provided herein, shall be superseded by this Agreement.

 

 


 

(b) Notwithstanding this Amendment and Restatement, including anything in this Section 1.01 and any related Loan Documents (as such term is defined in the Existing Credit Agreement and referred to herein, individually or collectively, as the “Existing Credit Documents”), (i) all of the indebtedness, liabilities and obligations owing by any Person under the Existing Credit Agreement and other Existing Credit Documents shall continue as Obligations hereunder, and (ii) each of this Agreement and the Notes and any other Loan Documents (as defined herein) that is amended and restated in connection with this Agreement is given as a substitution of and modification of, and not as a payment of or novation of, the indebtedness, liabilities and obligations of the Borrower under the Existing Credit Agreement or any Existing Credit Document, and neither the execution and delivery of such documents nor the consummation of any other transaction contemplated hereunder is intended to constitute a novation of the Existing Credit Agreement or of any of the other Existing Credit Documents or any obligations thereunder. Upon the effectiveness of this Agreement, all Committed Loans and Swing Line Loans (each as defined in the Existing Credit Agreement) owing by the Borrower and outstanding under the Existing Credit Agreement (collectively, the “Existing Loans”) shall continue as Committed Loans and Swing Line Loans, respectively, hereunder and shall constitute advances hereunder, and all Letters of Credit (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement and any of the Existing Credit Documents (collectively, the “Existing Letters of Credit”) shall continue as Letters of Credit hereunder.
(c) Immediately prior to the effectiveness of this Agreement, the Commitments (as defined in the Existing Credit Agreement) of the Existing Lenders and the outstanding amounts of the Existing Loans held by the Existing Lenders are set forth on Schedule A.
(d) Simultaneously with the Effective Date, the outstanding amount of all Existing Loans shall be reallocated in accordance with the Commitments hereunder as set forth on Schedule 2.01, and the requisite assignments shall be deemed to be made in amounts from each Lender to each other Lender, with the same force and effect as if such assignments were evidenced by the applicable Assignments and Assumptions (as defined in the Existing Credit Agreement) under the Existing Credit Agreement but without the payment of any related assignment fee, and no other documents or instruments shall be, or shall be required to be, executed in connection with such assignments (all of which such requirements are hereby waived);
(e) Simultaneously with the Effective Date and after giving effect the reallocation contemplated by Section 1.01(d), the Commitments of each of the Lenders following the Effective Date shall as set forth on Schedule 2.01.
1.02 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
Acquisition” means the acquisition of (i) an equity or other ownership interest in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such an interest at the time it becomes exercisable by the holder thereof), whether by purchase of such equity or other ownership interest or upon the exercise of an option or warrant for, or conversion of securities into, such equity or other ownership interest, which, following such acquisition, would result in the assets and liabilities of such Person being included in CSI’s consolidated balance sheet, or (ii) assets of another Person which constitute all or substantially all of the assets of such Person or of a line or lines of business conducted by such Person, but shall not include the acquisition of real property irrespective of what percentage such real estate may represent of the assets of the seller thereof.

 

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Additions or Enhancements” means with respect to any Borrowing Base Property any improvements, expansions, additions, alterations, betterments or appurtenances thereto.
Adjusted Consolidated Total Asset Value” means, as of any date, an amount equal to (a) Consolidated Total Asset Value as of such date, minus (b) the portion of Consolidated Total Asset Value as of such date attributable to all Excluded Subsidiaries as of such date.
Adjusted Property EBITDA” means with respect to each Property owned by the Borrower or any Subsidiary (other than a Development Property or Unimproved Land) for any period (without duplication): (a) net income (loss) of such Property for such period determined in accordance with GAAP, exclusive of the following (but only to the extent included in determination of such net income (loss)): (i) depreciation and amortization expense; (ii) total interest expense of such Property, including capitalized interest not funded under a construction loan interest reserve account, determined in accordance with GAAP for such period; (iii) income tax expense; and (iv) extraordinary or non-recurring gains and losses; less (b) Capital Reserves.
Administrative Agent” or “Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
Administrative Agent’s Office” means Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as Agent may from time to time notify Borrower and Lenders.
Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by Agent.
Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control with, the Person specified.
Aggregate Commitments” means the Commitments of all Lenders.
Agreement” means this Credit Agreement.
Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time, subject to adjustment as provided in Section 2.17. If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

 

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Applicable Rate” means, from time to time, the following percentages per annum, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by Agent pursuant to Section 7.02(b):
                         
          Applicable Rate  
Pricing         Eurodollar Rate and        
Level     Total Leverage Ratio   Letters of Credit     Base Rate  
1      
< 0.40:1
    2.75 %     1.75 %
2      
≥ 0.40:1 but < 0.50:1
    3.00 %     2.00 %
3      
≥ 0.50:1 but < 0.60:1
    3.25 %     2.25 %
4      
≥ 0.60:1
    3.50 %     2.50 %
Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day of the month immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(b); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then one Pricing Level higher than the previously applicable Pricing Level (unless already at Pricing Level 4) shall apply as of the first Business Day of the month following the date such Compliance Certificate was required to have been delivered. The Applicable Rate in effect from the Effective Date until delivery of the Compliance Certificate for the fiscal quarter ending March 31, 2011 shall be determined based upon Pricing Level 2.
Appraisal Requirements” means, collectively, those standards, policies, requirements and provisions regarding valuation of Borrowing Base Properties set forth in Schedule 5A.04(a), as it may be amended from time to time.
Appraised Value” means, with respect to any Eligible Property, on an “as-is” basis, the lesser of its (i) Leased Fee Value and (ii) Fee Simple Value, as determined by a Qualified Appraiser; provided, however, if any entity (other than CSI or any Affiliate thereof) shall have a contractual right to purchase any Pledged Property from Borrower or any Guarantor, the Appraised Value of such Eligible Property shall be deemed to be the purchase price under such option, but only to the extent such purchase price is less than the Appraised Value as determined under clause (i) or (ii), as appropriate.
Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated (successor by merger to Banc of America Securities LLC), and KeyBanc Capital Markets, each in its capacity as a joint lead arranger and joint book manager.
Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by Agent, in substantially the form of Exhibit F or any other form approved by Agent.

 

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Audited Financial Statements” means the audited consolidated balance sheet of CSI and its Subsidiaries for the fiscal year ended December 31, 2009, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, including the notes thereto.
Availability Period” means the period from and including the Effective Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02.
Available Amount” means, as of the date of determination thereof, the lesser of:
(a) the Total Collateral Value;
(b) the Synthetic DSCR Principal Amount; and
(c) the Aggregate Commitments.
The Available Amount shall be calculated on a quarterly basis, and, upon the request of the Required Lenders, upon each borrowing under the Senior Credit Facility.
Available Amount Certificate” has the meaning specified in Section 4.01(a)(xiv).
Bank of America” means Bank of America, N.A. and its successors.
Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by the Agent as its “prime rate,” and (c) the Eurodollar Rate plus 1.00%. The “prime rate” is a rate set by the Agent based upon various factors including the Agent ’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by the Agent shall take effect at the opening of business on the day specified in the public announcement of such change.
Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.
Base Rate Loan” means a Loan that bears interest based on the Base Rate.
Benefited Parties” means, collectively, the Agent and the Lenders and affiliates thereof party to a Secured Cash Management Agreement or Secured Hedge Agreement with CSI or any Subsidiary thereof.
Borrower” has the meaning specified in the introductory paragraph hereto.

 

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Borrower Materials” has the meaning specified in Section 7.02.
Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
Borrowing Base Property” means each Pledged Property identified as constituting a part of the Borrowing Base on Schedule 5A.04(b), as it may be updated, amended or replaced from time to time, in accordance with the terms hereof. Notwithstanding the granting of a lien of a Mortgage with respect to any Pledged Property, such Pledged Property shall only be deemed to constitute a Borrowing Base Property so long as such Pledged Property continues to meet the requirements set forth in the definition of “Eligible Property”. If a survey is required for such Pledged Property pursuant to Section 7.17, such Pledged Property shall only be deemed to constitute a Borrowing Base Property if the requirements of Section 7.17 have been satisfied.
Borrowing Base” means, collectively, the Borrowing Base Properties.
Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
Capital Reserves” means, for any period and with respect to a Property, an amount equal to (a) $0.40 per square foot of such Property times (b) a fraction, the numerator of which is the number of days in such period and the denominator of which is 365. Any portion of a Property leased under a ground lease to a third party that owns the improvements on such portion of such Property shall not be included in the determination of Capital Reserves. If the term “Capital Reserves” is used without reference to any specific Property, then the amount shall be determined on an aggregate basis with respect to all Properties of CSI and its Subsidiaries and the appropriate pro rata share of all square footage in Properties owned by Unconsolidated Affiliates.
Capitalized Lease Obligations” means obligations under a lease that are required to be capitalized for financial reporting purposes in accordance with GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of such obligation as would be required to be reflected on a balance sheet of the applicable Person prepared in accordance with GAAP as of the applicable date.
Cash Collateralize” means to pledge and deposit with or deliver to the Agent, for the benefit of the Agent, L/C Issuer, Swing Line Lender (as applicable) or the Lenders (as applicable), as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

6


 

Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
Cash Management Bank” means any Person that, (a) at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement in each case in its capacity as a party to such Cash Management Agreement.
Change in Law” means (a) any change arising from the enactment or enforcement of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended, or any rules, regulations, interpretations, guidelines or directives promulgated thereunder, and (b) the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (iii) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.
Change of Control” means, an event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and any person Controlled by the Chairman of the Board of Directors or the Chief Executive Officer of CSI) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 33% or more of the equity securities of CSI entitled to vote for members of the board of directors or equivalent governing body CSI on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);
(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of CSI cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors);

 

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(c) any Person other than CSI or CS Business Trust I (or any successor thereto that is wholly-owned by CSI and is a Guarantor) shall become the general partner of Borrower; or
(d) any Person other than CSI shall be the beneficial owner, directly or indirectly, of any interests or be the beneficiary of CS Business Trust I or CS Business Trust II.
Closing Date” means March 10, 2008, being the date all conditions precedent to the effectiveness of the Existing Credit Agreement were satisfied.
Code” means the Internal Revenue Code of 1986.
Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
Collateral” means, collectively, all property of CSI, the Borrower or any Subsidiary or any other Person in which the Agent or any Lender is granted a Lien as security for all or any portion of the Obligations under any of the Security Instruments.
Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
Committed Loan” has the meaning specified in Section 2.01.
Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
Compliance Certificate” means a certificate substantially in the form of Exhibit E.
Consolidated Adjusted EBITDA” means for any period for CSI and its Subsidiaries on a consolidated basis (without duplication):
(a) net income (loss) of CSI and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, plus the following (but only to the extent included in the determination of such net income (loss)): (i) depreciation and amortization expense; (ii) Consolidated Interest Expense; (iii) income tax expense; and (iv) extraordinary or non-recurring losses; minus (but only to the extent included in the determination of such net income (loss)) extraordinary or non-recurring gains; plus

 

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(b) CSI’s pro rata share of net income (loss) of Unconsolidated Affiliates for such period determined on a consolidated basis, in accordance with GAAP, plus the following (but only to the extent included in the determination of such net income (loss)): (i) depreciation and amortization expense; (ii) interest expense (without duplication of any amounts excluded as Consolidated Interest Expense under clause (a)(ii) above); (iii) income tax expense; and (iv) extraordinary or non-recurring losses of Unconsolidated Affiliates; minus (but only to the extent included in the determination of such net income (loss)) extraordinary or non-recurring gains of Unconsolidated Affiliates; plus
(c) inter-company eliminations related to Erdman and its subsidiaries; less
(d) Capital Reserves.
Consolidated Adjusted EBITDA shall be adjusted to remove any impact from straight line rent leveling adjustments required under GAAP and amortization of intangibles pursuant to Statement No. 141 of the Financial Accounting Standards Board (FAS 141).
Consolidated Fixed Charges” means, for any period, the sum of (a) Consolidated Interest Expense for such period, (b) all regularly scheduled principal payments paid or payable with respect to Consolidated Total Indebtedness of CSI and its Subsidiaries during such period (other than any balloon, bullet or similar principal payment that repays such Indebtedness in full), and (c) all Preferred Dividends paid during such period, including the pro rata share of the Preferred Dividends paid by Unconsolidated Affiliates.
Consolidated Interest Expense” means, for any period for CSI and its Subsidiaries, without duplication, (a) total interest expense of CSI and its Subsidiaries, including capitalized interest not funded under a construction loan interest reserve account, determined on a consolidated basis in accordance with GAAP for such period, plus (b) the pro rata share of interest expense (calculated in the manner set forth in clause (a)) of Unconsolidated Affiliates for such period.
Consolidated Recourse Indebtedness” means, at any time, the aggregate outstanding principal amount of all Recourse Indebtedness of CSI and its Subsidiaries at such time on a consolidated basis.
Consolidated Tangible Net Worth” means, as of a given date with respect to CSI and its Subsidiaries on a consolidated basis in accordance with GAAP, (a) the stockholders’ equity of CSI and its Subsidiaries determined on a consolidated basis, plus (b)(i) accumulated depreciation and amortization and (ii) (to the extent deducted in determining stockholders’ equity of CSI and its Subsidiaries) minority interests in operating partnerships, determined in accordance with GAAP, minus (c) the following (to the extent reflected in determining stockholders’ equity of CSI and its Subsidiaries): (i) the amount of any write-up in the book value of any assets contained on CSI’s consolidated balance sheet resulting from revaluation thereof or any write-up in excess of the cost of such assets acquired, and (ii) all amounts appearing on the assets side of CSI’s consolidated balance sheet for assets which would be classified as intangible assets under GAAP, all determined on a consolidated basis.

 

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Consolidated Total Asset Value” means, as of any date, the sum of all of the following of the Borrower and its Subsidiaries, on a consolidated basis, determined in accordance with GAAP applied on a consistent basis, without duplication: (a) cash, cash equivalents and the value of marketable securities, plus (b) with respect to each Property owned by the Borrower or any Subsidiary (other than a Development Property or Unimproved Land), the quotient of (i) Adjusted Property EBITDA attributable to such Property for the fiscal quarter most recently ended times 4, divided by (ii) 0.080, plus (c) the GAAP book value of all Properties acquired during the most recent four fiscal quarters, plus (d) the GAAP book value all Development Properties, plus (e) the portion of Consolidated Adjusted EBITDA attributable to Erdman and its Subsidiaries on a consolidated basis determined in accordance with GAAP applied on a consistent basis for the four consecutive fiscal quarters most recently ended times a multiple of 8.0 times (not to exceed 15% of Consolidated Total Asset Value), plus (f) the GAAP book value of Unimproved Land, Mortgage Receivables and other promissory notes. For purposes of this definition, the Borrower’s pro rata share of assets held by Unconsolidated Affiliates (excluding assets of the type described in the immediately preceding clause (a)) will be included in Consolidated Total Asset Value calculations consistent with the above described treatment for wholly owned assets. For purposes of determining Consolidated Total Asset Value, Net Operating Income from Properties acquired or disposed of by the Borrower or any Subsidiary during the immediately preceding four fiscal quarters shall be excluded.
Consolidated Total Indebtedness” means all Indebtedness of CSI and all of its Subsidiaries determined on a consolidated basis and shall include (without duplication) the pro rata share of the Indebtedness of CSI’s Unconsolidated Affiliates.
Construction-in-Process” means cash expenditures for land and improvements (including indirect costs internally allocated and development costs) determined in accordance with GAAP on all Properties that are under development or are scheduled to commence development within 12 months.
Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
CS Business Trust I” means CS Business Trust I, a Maryland statutory trust, and the general partner of the Borrower.
CS Business Trust II” means CS Business Trust II, a Maryland statutory trust, and a limited partner of the Borrower.
CSI” has the meaning specified in the introductory paragraph hereto.

 

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Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate” means (a) when used with respect to Obligations other than L/C Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to L/C Fees, a rate equal to the Applicable Rate plus 2% per annum.
Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as determined by the Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit or Swing Line Loans, within three Business Days of the date required to be funded by it hereunder (it being understood that a Lender is not a Defaulting Lender solely as a result of its refusal to fund due to a good faith belief by such Lender that the Borrower has not met the conditions necessary to obtain a funding), (b) has notified the Borrower or the Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit (it being understood that a Lender is not a Defaulting Lender solely as a result of its refusal to fund under other agreements due to a good faith belief by such Lender that the applicable borrower under such other agreement has not met the conditions necessary to obtain a funding thereunder), (c) has failed, within three Business Days after request by the Agent or the Borrower, to confirm in a manner satisfactory to the Agent that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent) , or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.
Development Property” means either (i) a Property that is either under development as Construction-in-Process or is scheduled to commence development within twelve (12) months or (ii) a Property on which the improvements (other than tenant improvements on unoccupied space) related to the development thereof have been completed for less than twelve (12) months but the Property has not achieved an Occupancy Rate of at least 80%. A Development Property on which all improvements (other than tenant improvements on unoccupied space) related to the development of such Property have been completed for twelve (12) months or more shall cease to constitute a Development Property and shall be treated as a Stabilized Property regardless of its Occupancy Rate.

 

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Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
Dollar” and “$” mean lawful money of the United States.
Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.
Effective Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 11.01.
Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).
Eligible Property” means a Property which satisfies all of the following requirements, as evidenced in an Eligible Property Compliance Certificate:
(a) such Property is fully developed as (i) a medical office property, (ii) an ambulatory surgery property, or (iii) other property customarily constituting an asset of a REIT specializing in medical office properties;
(b) such Property is 100% owned by a Guarantor, or 100% leased by a Guarantor under a Ground Lease reasonably acceptable to the Agent as to which (i) Lease Party Documents have been delivered to the Agent and (ii) the base rental payments to lessors or their assignees by such Persons under such Ground Lease are not delinquent for more than 60 days;
(c) such Property, or any interest of the Borrower or any Guarantor therein, is free of all Liens except Permitted Encumbrances;
(d) the Borrower, directly or indirectly through the Guarantor that owns or leases such Property, has the right to take the following actions without the need to obtain the consent of any Person, or to the extent any consent is required by the Ground Lease, such consent has been obtained: (x) to sell, transfer or otherwise dispose of such Property in the case of an owned Property or (y) to create a lien on such Property as security for Indebtedness of the Borrower or such Guarantor, in the case of a leased Property;
(e) such Property is free of all structural defects or major architectural deficiencies, title defects, environmental conditions or other adverse matters except for defects, deficiencies, conditions or other matters individually or collectively which are not material to the profitable operation of such Property; and

 

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(f) such Property is in material compliance with all Environmental Laws as evidenced by a Phase I environmental assessment (and, if required or recommended by the results of the Phase I environmental assessment, a Phase II environmental assessment) in form and substance reasonably satisfactory to the Agent, and dated not earlier than six months prior to the date of the Eligible Property Compliance Certificate for such Property provided, however, with respect to each of the Existing Eligible Properties, such previously approved Phase I environmental assessments shall be satisfactory to the Agent if supplemented by an environmental questionnaire delivered by the owner or ground lessee of such Existing Eligible Property, in form and substance reasonably satisfactory to the Agent and dated not earlier than six months prior to the Effective Date; or
(g) if such Property does not meet the above criteria, such Property is otherwise acceptable to the Required Lenders in their sole and absolute discretion.
Eligible Property Compliance Certificate” means a certificate of the Borrower, dated the date of submission to the Agent of the items required thereby, evidencing the compliance by a particular Eligible Property with items (a) through (f) of the definition of “Eligible Property”, or, with respect to an Eligible Property qualifying as such under item (g) of the definition of “Eligible Property,” evidencing compliance with those items required by the Required Lenders, in the form of Exhibit H.
Environmental Indemnity Agreement” or “Environmental Indemnity Agreements” means, individually and collectively, as the context requires, each of the Environmental Indemnity Agreements executed by the Borrower, CSI, or any other Guarantor with respect to the Pledged Properties, substantially in the form of Exhibit M or, with respect to an Existing Pledged Property, an Environmental Indemnity Agreement executed by the Borrower, CSI or any other Guarantor with respect to such Existing Pledged Property, as reaffirmed on or about the date hereof.
Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

 

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Equity Issuance” means any issuance by CSI or any Subsidiary of any Equity Interest in such Person and shall in any event include (x) the issuance of any Equity Interest upon the conversion or exchange of any security constituting Indebtedness that is convertible or exchangeable, or is being converted or exchanged, for Equity Interests or (y) any additional capital contribution, by way of capital call or otherwise, in respect of any equity interest previously issued.
Erdman” means the Erdman Company.
ERISA” means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.
Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar Rate.
Eurodollar Rate” means
(a) for any Interest Period with respect to a Eurodollar Rate Loan, a rate per annum determined by Agent pursuant to the following formula; and
             
Eurodollar Rate
  =   Eurodollar Base Rate    
   
 
   
    1.00 – Eurodollar Reserve Percentage    

 

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(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two London Banking Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made or maintained and with a term equal to one month would be offered by the Agent ’s London Branch to major banks in the London interbank Eurodollar market at their request at the date and time of determination.
Where,
Eurodollar Base Rate” means, for such Interest Period the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “Eurodollar Base Rate” for such Interest Period shall be the rate per annum determined by Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by the Agent and with a term equivalent to such Interest Period would be offered by the Agent’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.
Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Board of Governors of the Federal Reserve System of the United States for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.
London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank Eurodollar market.
Eurodollar Rate Loan” means a Committed Loan that bears interest at a rate based on the Eurodollar Rate.
Event of Default” has the meaning specified in Section 9.01.
Excluded Subsidiary” means (i) any Subsidiary (a) holding title to assets which are or are to become collateral for any Non-recourse Indebtedness of such Subsidiary permitted pursuant to Section 8.03(g); (b) which is prohibited from guarantying the Indebtedness of any other Person pursuant to (i) any document, instrument or agreement evidencing such secured Indebtedness or (ii) a provision of such Subsidiary’s Organization Documents, which provision was included in such Subsidiary’s Organization Documents as a condition to the extension of such secured Indebtedness; (c) that is not wholly-owned, directly or indirectly, by CSI; or (d) that at formation was designated by CSI as a future joint venture and (ii) Verdugo Management, LLC, a California limited liability company.

 

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Excluded Taxes” means, with respect to Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by Borrower under Section 11.13), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from Borrower with respect to such withholding tax pursuant to Section 3.01(a).
Existing Borrowing Base Properties” means the “Borrowing Base Properties” which have met the criteria for, and been identified as, “Borrowing Base Properties” under the Existing Credit Agreement and meeting all of the requirements of Section 5A.04 as of the Effective Date, as set forth on Schedule 1.01(a) hereto.
Existing Credit Agreement” has the meaning specified in the Recitals hereto.
Existing Eligible Properties” means the “Eligible Properties” which have met the criteria for, and been identified as, “Eligible Properties” under the Existing Credit Agreement and as set forth on Schedule 1.01(b) hereto.
Existing Letters of Credit” means those letters of credit identified on Schedule 1.01(c).
Existing Pledged Properties” means the “Pledged Properties” which have met the criteria for, and been identified as, “Pledged Properties” under the Existing Credit Agreement and as set forth on Schedule 1.01(d) hereto.
Facility Guaranty” means, collectively, the amended and restated guaranty by CSI of Borrower’s Obligations as set forth in Article V and the Guaranty, as each of the same may be amended, restated, modified or supplemented from time to time.
Facility Interest Expense” means, for any period, the total amount of interest payable hereunder for such period plus L/C Fees for such period plus Unused Fees for such period.

 

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Facility Termination Date” means the date as of which all of the following shall have occurred: (a) Borrower shall have permanently terminated the credit facilities under the Loan Documents by final payment in full of all Outstanding Amounts, together with all accrued and unpaid interest and fees thereon (other than (i) the undrawn portion of Letters of Credit and (ii) all L/C Fees relating thereto accruing after such date (which fees shall be payable solely for the account of the L/C Issuer and shall be computed (based on interest rates and the Applicable Rate then in effect) on such undrawn amounts to the respective expiry dates of the Letters of Credit), which Obligations shall have been fully Cash Collateralized or as to which other arrangements satisfactory to Agent and the L/C Issuer shall have been made); (b) all Commitments shall have terminated or expired; (c) the obligations and liabilities of Borrower and each other Loan Party under all Secured Cash Management Agreements and Secured Hedge Agreements shall have been fully, finally and irrevocably paid and satisfied in full and the Secured Cash Management Agreements and Secured Hedge Agreements shall have expired or been terminated, or other arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made with respect thereto; and (d) Borrower and each other Loan Party shall have fully, finally and irrevocably paid and satisfied in full all of their respective obligations and liabilities arising under the Loan Documents not covered in the foregoing clauses (a) through (c) (except for future obligations consisting of continuing indemnities and other contingent Obligations of Borrower or any Loan Party that may be owing to any of its Related Parties or any Lender pursuant to the Loan Documents and expressly survive termination of this Agreement or any other Loan Document).
Federal Funds Rate” means, for any day, the rate per annum 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 Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by Agent.
Fee Letter” means the letter agreement, dated January 19, 2011, among Borrower, Agent and MLPFS with respect to the credit facilities contemplated by this Agreement.
Fee Simple Value” means the appraised value of a property for which the owner has absolute ownership, unencumbered by any other interest or estate subject only to Permitted Encumbrances, and the limitations imposed by the governmental powers of taxation, eminent domain, police power and escheat.
Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

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Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
Funds From Operations” means, with respect to CSI and its Subsidiaries and for a given period, (a) net income (loss) of CSI and its Subsidiaries determined on a consolidated basis for such period minus (or plus) (b) gains (or losses) from debt restructuring and sales of property determined on a consolidated basis during such period plus (c) depreciation and amortization expense (other than amortization of deferred financing costs) plus (d) extraordinary or non-recurring gains (or losses) plus (e) inter-company eliminations related to Erdman and its Subsidiaries plus (f) any Restricted Payment deducted in the determination of net income (loss) of CSI and its Subsidiaries determined on a consolidated basis for such period, all after adjustment for unconsolidated partnerships and joint ventures. Adjustments for unconsolidated entities will be calculated to reflect Funds From Operations on the same basis.
GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
Grantor” shall have the meaning specified in Section 5A.03.
Grantor Authority Documents” means with respect to the applicable Grantor associated with an Eligible Property (to the extent not previously delivered):
(a) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of such Grantor as the Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Grantor is a party;

 

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(b) such documents and certifications as the Agent may reasonably require (x) to evidence that such Grantor is duly organized or formed, and (y) to evidence that such Grantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(c) a certificate of a Responsible Officer of such Grantor either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Grantor and the validity against such Grantor of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required.
Ground Lease” means, with respect to any Borrowing Base Property, a ground lease or air rights lease containing the following terms and conditions: (a) a remaining term (inclusive of any unexercised extension options exercisable at Borrower’s sole discretion) of (i) if such property is an Existing Eligible Property, 40 years or more from the Closing Date or (ii) if such property is not an Existing Eligible Property, 40 years or more from the date such property becomes a Borrowing Base Property; (b) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor or for which the consent of the lessor has been obtained; (c) the obligation of the lessor to give the holder of any mortgage lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosures, and fails to do so; (d) reasonable transferability of the lessee’s interest under such lease, including ability to sublease; and (e) such other rights customarily required by mortgagees making a loan secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease. Notwithstanding the foregoing, the lease of the Property known as Gaston MOB shall constitute a Ground Lease so long as such lease satisfies all of the foregoing requirements other than clause (a) above.
Ground Lessor Agreement” means, with respect to any Pledged Property subject to a Ground Lease, a Consent and Agreement Regarding Performance Under Ground Lease executed by the Agent, the owner and the ground lessee of such Pledged Property, in substantially the form attached hereto as Exhibit L or such other form as may be reasonably acceptable to the Agent in consideration of the terms of the related Ground Lease, or, with respect to an Existing Pledged Property, if required by the Agent, an affirmation of, and amendment to, Landlord’s Consent and Agreement Regarding Performance Under Ground Lease executed by the Agent, the owner and the ground lessee of such Existing Pledged Property, as reaffirmed on or about the date hereof.

 

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Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
Guarantor’s Obligations” has the meaning specified in Section 5.01.
Guarantors” means, collectively or individually as the context may indicate, CSI, CS Business Trust I, CS Business Trust II, and the Subsidiary Guarantors.
Guaranty” means the Amended and Restated Guaranty Agreement made by the Subsidiary Guarantors and CS Business Trust I and CS Business Trust II in favor of Agent for the benefit of the Lenders, substantially in the form of Exhibit G.
Guaranty Joinder Agreement” means each Guaranty Joinder Agreement, substantially in the form thereof attached to the Guaranty, executed and delivered by a Guarantor to Agent pursuant to Section 7.13, Section 10.10 or otherwise.
Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
Hedge Bank” means any Person that, (a) at the time it enters into a Secured Hedge Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Swap Contract permitted under Article VIII, in each case in its capacity as a party to such Secured Hedge Agreement.

 

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Indebtedness” means, with respect to a Person, at the time of computation thereof, all of the following (without duplication): (a) all obligations of such Person in respect of money borrowed (other than trade debt incurred in the ordinary course of business which is not more than 60 days past due); (b) all obligations of such Person, whether or not for money borrowed (i) represented by notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or services rendered; (c) Capitalized Lease Obligations of such Person; (d) all reimbursement obligations of such Person under any letters of credit or acceptances (whether or not the same have been presented for payment); (e) all Off-Balance Sheet Obligations of such Person; (f) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Mandatorily Redeemable Stock issued by such Person or any other Person, valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (g) all obligations of such Person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward equity commitment, in each case evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be satisfied by the issuance of Equity Interests (other than Mandatorily Redeemable Stock) at the option of such Person); (h) net obligations under any Swap Contract not entered into as a hedge against existing Indebtedness, in an amount equal to the Swap Termination Value thereof; (i) all Indebtedness of other Persons which such Person has Guaranteed or is otherwise recourse to such Person (except for guaranties of customary exceptions for fraud, misapplication of funds, environmental indemnities and other similar exceptions to recourse liability (but not exceptions relating to bankruptcy, insolvency, receivership or other similar events)); (j) all Indebtedness of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any lien on property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness or other payment obligation; and (k) such Person’s pro rata share of the Indebtedness of any Unconsolidated Affiliate of such Person. Indebtedness of any Person shall include Indebtedness of any partnership or joint venture in which such Person is a general partner or joint venturer to the extent of such Person’s pro rata share of the ownership of such partnership or joint venture (except if such Indebtedness, or portion thereof, is recourse to such Person, in which case the greater of such Person’s pro rata portion of such Indebtedness or the amount of the recourse portion of the Indebtedness, shall be included as Indebtedness of such Person). All Loans and L/C Obligations shall constitute Indebtedness of Borrower.
Indemnified Taxes” means Taxes other than Excluded Taxes.
Indemnitees” has the meaning specified in Section 11.04(b).
Information” has the meaning specified in Section 11.07.
Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan, on any day a prepayment under Section 2.05 is made and the Maturity Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December, on any day a prepayment under Section 2.05 is made and the Maturity Date.

 

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Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by Borrower in its Committed Loan Notice; provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, (c) purchase, acquisition or other investment in any real property or real property-related assets (including, without limitation, mortgage loans and other real estate-related debt investments, investments in unimproved land holdings and Properties, and costs to construct real property assets under development) or (d) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. Any banking commitment to make an Investment in any other Person, as well as any option of another Person to require an Investment in such Person, shall constitute an Investment. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
IRS” means the United States Internal Revenue Service.
ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
Issuer Documents” means with respect to any Letter of Credit, the L/C Application, and any other document, agreement and instrument entered into by the L/C Issuer and Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.

 

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Laws” means, collectively, all international, foreign, United States Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
L/C Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed Borrowing.
L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Expiration Date” means the day that is thirty days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
L/C Fee” has the meaning specified in Section 2.03(i).
L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
L/C Sublimit” means an amount equal to the lesser of (a) $25,000,000 and (b) the Available Amount. The L/C Sublimit is part of, and not in addition to, the Aggregate Commitments.
Lease Party Documents” means, (a) with respect to any Eligible Property, an Estoppel Certificate substantially in the form attached hereto as Exhibit I, executed by such tenants of the Eligible Property as Agent shall reasonably require, and a Subordination, Non-Disturbance and Attornment Agreement substantially in the form attached hereto as Exhibit J, executed by such tenants of the Eligible Property as Agent shall reasonably require, and the owner or ground lessee (as applicable) of the Eligible Property or (b) with respect to any Existing Eligible Property, an Estoppel Certificate, substantially in the form attached hereto as Exhibit I dated on or about the date hereof, executed by such tenants of the Existing Eligible Property as Agent shall reasonably require, and either (i) a Subordination, Non-Disturbance and Attornment Agreement or (ii) if a tenant has previously provided a Subordination, Non-Disturbance and Attornment Agreement in connection with an Existing Eligible Property, a Reaffirmation and Amendment to such Subordination, Non-Disturbance and Attornment Agreement, executed by such tenants of the Existing Eligible Property as Agent shall reasonably require, and the owner or ground lessee (as applicable) of the Existing Eligible Property.

 

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Leased Fee Value” means the appraised value to the lessee thereof of a property for which the owner has conveyed by lease the rights of use and occupancy of such property to such lessee.
Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes Swing Line Lender.
Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify Borrower and Agent.
Letter of Credit” means any letter of credit issued hereunder, and shall include the Existing Letters of Credit.
Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
Loan” means an extension of credit by a Lender to Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.
Loan Documents” means this Agreement (including the Facility Guaranty contained herein), each Note, if any, each Issuer Document, the Security Instruments, the Lease Party Documents, the Ground Lessor Agreements, the Environmental Indemnity Agreements, the Fee Letter and the Guaranty.
Loan Parties” means, collectively, CSI, Borrower and each other Person (other than Agent, the L/C Issuer, Swing Line Lender, or any Lender) executing a Loan Document including, without limitation, each Guarantor.
Mandatorily Redeemable Stock” means, with respect to any Person, any Equity Interest of such Person which by the terms of such Equity Interest (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock or other equivalent common Equity Interests), (b) is convertible into or exchangeable or exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in whole or in part (other than an Equity Interest which is redeemable solely in exchange for common stock or other equivalent common Equity Interests); in each case, on or prior to the Maturity Date.

 

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Material Adverse Effect” means (A) a material adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Borrower and its Subsidiaries, or Borrower and the Guarantors taken, as a whole; (B) a material impairment of the rights and remedies of the Agent or any Lender under any loan documentation, or of the ability of the Borrower or any Guarantor to perform its obligations under any loan documentation to which it is a party; and (C) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower or any Guarantor of any loan documentation to which it is a party.
Material Subsidiary” means any direct or indirect Subsidiary of CSI, other than any Excluded Subsidiary, which either (a) has total assets equal to or greater than five percent (5%) of the Consolidated Total Asset Value (calculated as of the most recent fiscal period end with respect to which Agent shall have received financial statements required to be delivered pursuant to Sections 7.01(a) or (b)), or (b) owns a Borrowing Base Property; provided, however, that, if the aggregate amount of Consolidated Total Asset Value attributable to such Subsidiaries is not at least ninety percent (90%) of Adjusted Consolidated Total Asset Value as of the end of any fiscal quarter, the Borrower (or, in the event the Borrower has failed to do so within ten days, the Agent) shall designate sufficient additional Subsidiaries as “Material Subsidiaries” as necessary to eliminate such deficiency, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Subsidiaries, provided, further, however, that any Material Subsidiary shall cease to be a Material Subsidiary and shall be released immediately from the Guaranty or any obligation to provide a Guarantee of Borrower’s Obligations, as the case may be, if it or substantially all of its assets are sold or conveyed in a transaction otherwise permitted under this Agreement.
Maturity Date” means March 1, 2014, such earlier date upon which the Aggregate Commitments may be terminated in accordance with the terms hereof or as such date may be extended pursuant to Section 2.15.
Mortgage” or “Mortgages” means, individually and collectively, as the context requires, each of the fee or leasehold mortgages, deeds of trust and deeds to secure debt executed by the Borrower, CSI, or any other Guarantor and delivered to Agent, granting a Lien to the Agent (or a trustee for the benefit of the Agent) for the benefit of the Secured Parties in the Pledged Properties, substantially in the form of Exhibit N or, with respect to an Existing Pledged Property, an amended and restated fee or leasehold mortgage, deed of trust or deed to secure debt executed by the applicable Guarantor and delivered to Agent, continuing the Lien granted to the Agent (or a trustee for the benefit of the Agent) for the benefit of the Secured Parties in such Existing Pledged Property.
Mortgage Receivables” means (i) the principal amount of any seller financing provided by CSI or any Subsidiary thereof to any Person on an arm’s length transaction basis, which is secured by a mortgage on the real property assets subject to such financing and (ii) collateralized mortgage obligations that are rated not less “Baa2/BBB” by at least two nationally recognized rating agency services.

 

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Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
Net Operating Income” or “NOI” means, for any Property and for a given period, an amount equal to (a) the sum of the gross revenues for such Property for such fiscal period received in the ordinary course of business (excluding pre-paid rents and revenues and security deposits except to the extent applied in satisfaction of tenants’ obligations for rent) minus (b) all operating expenses incurred with respect to such Property for such fiscal period (including an appropriate accrual for property taxes and insurance); provided that there shall be deducted from such amount the following (to the extent not duplicative of deduction already taken in the calculation of Net Operating Income), on a pro rata basis for such period, management expenses computed at an annual rate equal to the greater of (i) 4% of the annualized gross revenue of such Property and (ii) the annualized amount of management fees actually incurred with respect to such Property. Borrower may perform the preceding calculation on an aggregate basis for all such Properties wherever the context would appropriately permit or warrant the use of an aggregate calculation.
Net Proceeds” means, with respect to the sale, transfer or other disposition by any Loan Party of any Equity Interests to any Person other than any Loan Party, as applicable, (a) the amount of cash (freely convertible into Dollars) received by such Loan Party, from such sale or other disposition (including, without limitation, any tax refund or tax benefit resulting from a loss on such sale or other disposition as and when such tax benefit is realized), after (i) provision for all income or other taxes of CSI and its Subsidiaries measured by or resulting from such sale or other disposition, (ii) payment of all reasonable third-party brokerage commissions and other reasonable out-of-pocket fees and expenses to third parties related to such sale or other disposition, and (iii) deduction of appropriate amounts to be provided by such Loan Party as a reserve, in accordance with GAAP, against any liabilities associated with such sale, transfer or other disposition and retained by such Loan Party after such sale or other disposition or (b) with respect to the issuance of Partnership Units by the Borrower, the GAAP book value assigned to such Partnership Units upon the issuance thereof.
Non-recourse Indebtedness” means, with respect to a Person, (a) Indebtedness of such Person for borrowed money in respect of which recourse for payment (except for customary exceptions for fraud, fraudulent conveyance, intentional misrepresentation, misappropriation of funds or other property, misapplication of funds (including without limitation rents, profits, tenant deposits or insurance or condemnation proceeds), mismanagement or waste, tax, ERISA, environmental and other regulatory law indemnities, nonpayment of utilities, operations and maintenance expenses and obligations secured by statutory liens, failure to comply with legal requirements necessary to maintain the tax-exemption on the interest on such Indebtedness (if applicable), failure to insure or failure to pay transfer fees and charges due to the lender in connection with any sale or other transfer of the Property subject to such Indebtedness and any fees and expenses (and interest thereon) of the holder of such Indebtedness in connection with the enforcement of such recourse obligations (but not exceptions relating to bankruptcy, insolvency, receivership or other similar events)) is contractually limited to specific assets of such Person encumbered by a lien securing such Indebtedness or (b) if such Person is a Single Asset Entity, any Indebtedness for borrowed money of such Person, in each case, regardless of whether any other Person is also obligated under such Indebtedness (whether in the form of a guarantee, collateral security or otherwise).

 

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Note” means a promissory note made by Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C-1, or with respect to an Existing Lender, an amended and restated promissory note made by Borrower in favor of such Existing Lender evidencing Loans made by such Existing Lender, substantially in the form of Exhibit C-2.
Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
Occupancy Rate” means, with respect to a Property at any time, the ratio, expressed as a percentage, of (a) the net rentable square footage of such Property actually occupied by tenants that are not affiliated with Borrower and paying rent at rates not materially less than rates generally prevailing at the time the applicable lease was entered into, pursuant to binding leases as to which no monetary default has occurred and has continued unremedied for 30 or more days to (b) the aggregate net rentable square footage of such Property. For purposes of the definition of “Occupancy Rate”, a tenant shall be deemed to actually occupy a Property notwithstanding a temporary cessation of operations for renovation, repairs or other temporary reason, or for the purpose of completing tenant build-out or that is otherwise scheduled to be open for business within 90 days of such date. For purposes of determining compliance with Section 7.16 hereof, the aggregate Occupancy Rate for the Borrowing Base shall be computed on an aggregated basis for all Borrowing Base Properties, consistent with the provisions for determining the Occupancy Rate for any individual Property as set forth above.
Off-Balance Sheet Obligations” means liabilities and obligations of CSI, Borrower, any Subsidiary or any other Person in respect of “off-balance sheet arrangements” (as defined in the SEC Off-Balance Sheet Rules) which CSI would be required to disclose in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of its report on Form 10 Q or Form 10 K (or their equivalents) which CSI is required to file with the SEC. As used in this definition, the term “SEC Off-Balance Sheet Rules” means the Disclosure in Management’s Discussion and Analysis About Off Balance Sheet Arrangements, Securities Act Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR pts. 228, 229 and 249).

 

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Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
Other Taxes” means all present or future stamp, intangible or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.
Outstanding Amount” means (i) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by Borrower of Unreimbursed Amounts.
Participant” has the meaning specified in Section 11.06(d).
Partnership Units” means with respect to Borrower, and with respect to each class of partnership, those units representing an equal undivided fractional share of each item of Borrower’s income, gain and loss and in distribution of Borrower’s assets.
PBGC” means the Pension Benefit Guaranty Corporation.
Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
Permitted Acquisition” means any Acquisition by the Borrower or any of its Subsidiaries; provided that immediately before and immediately after giving pro forma effect to any such Acquisition (including any assumption or incurrence of Indebtedness in connection therewith), no Default shall have occurred and be continuing.
Permitted Distribution Amount” means, with respect to any period of time, 95% of Funds From Operations for the relevant period.

 

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Permitted Encumbrances” means, (a) with respect to any Existing Pledged Property, the title exceptions shown in Schedule B of the title policy for such Pledged Property submitted to and approved by the Agent prior to the Effective Date, (b) with respect to any Eligible Property which shall become a Pledged Property following the Effective Date, the title exceptions shown in Schedule B of the loan title insurance commitment for such Pledged Property submitted to and approved by Agent, (c) with respect to any property, any easements, rights-of-ways, restrictions and other encumbrances affecting real estate which arise after the date such property becomes a Borrowing Base Property and, individually or in the aggregate, are not substantial in amount and which do not materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business conducted on such property, and such other title exceptions submitted in writing to, and approved by, the Agent, and (d) Liens in favor of the Agent for the benefit of the Secured Parties pursuant to the Security Instruments.
Permitted Liens” means, with respect to any personal property relating to a Pledged Property in which a Loan Party has granted a security interest to Agent pursuant to a Mortgage, any Liens encumbering such personal property which have been submitted in writing to, and approved by, Agent.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
Platform” has the meaning specified in Section 7.02.
Pledged Property” or “Pledged Properties” means individually or collectively as the context indicates, any Eligible Property or Eligible Properties subject to a Mortgage.
Preferred Dividends” means, for any period and without duplication, all Restricted Payments paid during such period on Preferred Equity Interests issued by CSI or any Subsidiary. “Preferred Dividends” shall not include dividends or distributions (a) paid or payable solely in Equity Interests (other than Mandatorily Redeemable Stock) payable to holders of such class of Equity Interests; (b) paid or payable to CSI or any Subsidiary; or (c) constituting or resulting in the redemption of Preferred Equity Interests, other than scheduled redemptions not constituting balloon, bullet or similar redemptions in full.
Preferred Equity Interest” means, with respect to any Person, Equity Interests in such Person which are entitled to preference or priority over any other Equity Interest in such Person in respect of the payment of dividends or distribution of assets upon liquidation or both.
Property” means any parcel of real property owned or leased (in whole or in part) by Borrower or any Subsidiary and which is located in a state of the United States of America or the District of Columbia.
Qualified Appraiser” means a MAI appraiser selected by the Agent or reasonably acceptable to the Agent.

 

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Real Property Support Documents” means, with respect to each Borrowing Base Property, a current survey (or, with respect to an Existing Eligible Property, the previously delivered survey and title insurance covering over matters that would be disclosed by a current survey to be provided in the form of updated access, survey and comprehensive endorsements, in form and substance satisfactory to the Agent), a loan title insurance commitment (or, with respect to an Existing Eligible Property, an endorsement to the existing title insurance policy updating the title and policy coverage), a Ground Lessor Agreement (if applicable), Lease Party Documents, certified rent roll, copies of all tenant leases, evidence that the Property is not in violation of any applicable zoning requirements, and such other usual and customary documentation for a Borrowing Base Property as Agent may reasonably require, in each case in form and substance satisfactory to the Agent. With respect to Existing Eligible Properties, the previously delivered zoning information and related documentation satisfy any applicable zoning requirements hereunder.
Recourse Indebtedness” means any Indebtedness of CSI or any of its Subsidiaries that is not Non-recourse Indebtedness, other than Indebtedness outstanding pursuant to this Agreement and the other Loan Documents.
Register” has the meaning specified in Section 11.06(c).
Registration Statement” means the Registration Statement of CSI on Form S-11, Registration No. 333-127396, as filed by CSI with the SEC on October 26, 2005.
REIT” means a real estate investment trust qualified for treatment as such for United States Federal income tax purposes under Sections 856 through 860 of the Code.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
Remaining Development Amount” means (A)(i) the total cost to develop the real property under construction, including the acquisition of land, as reasonably determined by the Borrower in good faith minus (ii) the total expenditures to date based on GAAP, times (B) 50%.
Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a L/C Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
Required Lenders” means, as of any date of determination, Lenders having more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02, Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

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Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account of any Equity Interest of CSI or any Subsidiary now or hereafter outstanding, except a dividend payable solely in Equity Interests of identical class to the holders of that class; (b) any redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interest of Borrower or any Subsidiary now or hereafter outstanding; and (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of Borrower or any Subsidiary now or hereafter outstanding.
Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.
SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank.
Secured Hedge Agreement” means any Swap Contract permitted under Article VIII that is entered into by and between any Loan Party and any Hedge Bank.
Secured Parties” means, collectively, Agent and the Lenders, the Hedge Banks and the Cash Management Banks.
Secured Recourse Indebtedness” means (i) secured Indebtedness that is not Non-recourse Indebtedness and (ii) any Guarantee of secured Non-recourse Indebtedness.
Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in effect on any applicable date hereunder.
Security Instruments” means, collectively or individually as the context may indicate, the Mortgages and all other agreements, instruments and other documents, whether now existing or hereafter in effect, pursuant to which the Borrower or other Loan Party or any other Person shall grant or convey to the Agent for the benefit of the Secured Parties a Lien on, or any other Person shall acknowledge any such Lien on, property as security for all or any portion of the Obligations.

 

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Single Asset Entity” means a Person (other than an individual) that (a) only owns a single Property; (b) is engaged only in the business of owning, developing and/or leasing such Property; and (c) receives substantially all of its gross revenues from such Property. In addition, if the assets of a Person consist solely of (i) Equity Interests in one other Single Asset Entity and (ii) cash and other assets of nominal value incidental to such Person’s ownership of the other Single Asset Entity, such Person shall also be deemed to be a “Single Asset Entity”.
Solvent” means, when used with respect to any Person, that at the time of determination:
(a) the fair value of its assets (both at fair valuation and at present fair saleable value on an orderly basis) is in excess of the total amount of its liabilities, including contingent obligations; and
(b) it is then able and expects to be able to pay its debts as they mature; and
(c) it has capital sufficient to carry on its business as conducted and as proposed to be conducted.
Stable or Stabilized”, when used to describe a Property, means a Property (i) that has achieved an Occupancy Rate of at least 80% or (ii) for which all improvements (other than tenant improvements) have been completed for a period of twelve (12) months.
Subsidiary” of a Person means a corporation, partnership, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of CSI.
Subsidiary Guarantors” means each of the Material Subsidiaries of Borrower at the Effective Date and each other Subsidiary that becomes a party to the Guaranty (including by execution of a Guaranty Joinder Agreement).
Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

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Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
Swing Line” means the revolving credit facility made available by Swing Line Lender pursuant to Section 2.04.
Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
Swing Line Loan” has the meaning specified in Section 2.04(a).
Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B.
Swing Line Sublimit” means an amount equal to, on any day within the Availability Period, the lesser of (a) $25,000,000, (b) the Available Amount and (c) the amount of the Aggregate Commitments available to be borrowed on such day. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.
Synthetic DSCR Principal Amount” means the sum of (i) the principal amount of a hypothetical loan that would result in a Synthetic Portfolio Debt Service Coverage Ratio equal to 1.30 to 1.00 (increasing to 1.50 to 1.00 on March 1, 2013) plus (ii) 50% of the GAAP book value of each Development Property that is at least 50% pre-leased (provided, however that any such Development Property shall only be included under this clause (ii) until the earlier of (A) the one year anniversary date of project completion or (B) the first full fiscal quarter after such Property becomes Stabilized); provided, however, notwithstanding the actual GAAP book value of the Development Properties in the Borrowing Base, in no event shall Development Properties constitute more than 20% of the Synthetic DSCR Principal Amount. The “Synthetic Portfolio Debt Service Coverage Ratio” means the ratio of (a) aggregate Net Operating Income attributable to the Borrowing Base Properties (excluding Net Operating Income, if any, from Development Properties) minus Capital Reserves allocable to such properties for the fiscal quarter most recently ended times 4, to (b) annualized aggregate debt service on hypothetical, 30-year loan amortizing on a monthly, level-debt-service basis and bearing interest (computed on a 365- 6/360 basis) at a per annum rate equal to the greater of (i) 7.00% and (ii) the sum of (x) the then current yield on United States Treasury securities having a 10 year maturity plus (y) 250 basis points.

 

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Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Total Collateral Value” means (i) an aggregate amount equal to 70% of the aggregate “as-is” Appraised Value of each Borrowing Base Property that is Stabilized (reducing to 65% on March 1, 2013), as determined by FIRREA-compliant MAI appraisals commissioned, reviewed and approved by the Agent plus (ii) with respect to each Borrowing Base Property that is a Development Property and is at least 50% pre-leased, 50% of the GAAP book value of such Development Property minus the Remaining Development Amount, if any, required to complete such Development Property (provided, however that any such Development Property shall only be included under this clause (ii) until the earlier of (A) the one year anniversary date of project completion or (B) the fiscal quarter after such Property becomes Stabilized); provided, however, notwithstanding the actual GAAP book value of the Development Properties in the Borrowing Base, in no event shall Development Properties constitute more than 20% of Total Collateral Value and no Development Property shall be included in the Borrowing Base if it is not reasonably anticipated to be completed prior to the Maturity Date.
Total Leverage Ratio” means, as of any date of determination, the ratio of Consolidated Total Indebtedness as of such date to Consolidated Total Asset Value as of such date.
Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
Unconsolidated Affiliate” means, with respect to CSI or any Subsidiary thereof, any other Person in whom CSI or any such Subsidiary holds an Investment, which Investment is accounted for in the financial statements of CSI and its Subsidiaries on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of CSI on its consolidated financial statements.
Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

 

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Unimproved Land” means land on which no development (other than improvements that are not material and are temporary in nature) has occurred and for which no development is scheduled in the following 12 months.
United States” and “U.S.” mean the United States of America.
Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
Unused Fee” has the meaning specified in Section 2.09(a).
1.03 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein”, “hereof” and “hereunder”, and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

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1.04 Accounting Terms. (a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower or the Required Lenders shall so request, Agent, Lenders and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide to Agent and Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
(c) Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of CSI and its Subsidiaries or to the determination of any amount for CSI and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that CSI is required to consolidate pursuant to FASB Interpretation No. 46 — Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein.
(d) Valuation of Indebtedness. For purposes of calculating the Total Leverage Ratio, all Consolidated Total Indebtedness shall be determined as the outstanding principal amount thereof.
1.05 Rounding. Any financial ratios required to be maintained by Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts. Unless otherwise specified herein the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

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ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “Committed Loan”) to Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided, however, that after giving effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed the Available Amount, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment. Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Committed Loans. (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon Borrower’s irrevocable notice to Agent, which may be given by telephone. Each such notice must be received by Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each telephonic notice by Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by Borrower, Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to Agent in immediately available funds at Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), Agent shall make all funds so received available to Borrower in like funds as received by Agent either by (i) crediting the account of Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) Agent by Borrower; provided, however, that if, on the date the Committed Loan Notice with respect to such Borrowing is given by Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing first, shall be applied, to the payment in full of any such L/C Borrowings, and second, shall be made available to Borrower as provided above.

 

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(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders.
(d) Agent shall promptly notify Borrower and Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.
(e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to Eurodollar Rate Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Effective Date until the L/C Expiration Date, to issue Letters of Credit for the account of Borrower, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Available Amount, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, or (z) the Outstanding Amount of the L/C Obligations shall not exceed the L/C Sublimit. Each request by Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof.

 

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(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the date that is more than twelve months after the L/C Expiration Date.
Prior to the L/C Expiration Date, the Borrower shall Cash Collateralize all Letters of Credit having an expiry date after the L/C Expiration Date and failure to do so within 10 days after the L/C Expiration Date shall constitute an Event of Default under Section 9.01(a).
(iii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with Borrower or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender; or

 

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(F) unless specifically provided for in this Agreement, such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to Agent in Article X with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” or “Agent” as used in Article X included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of Borrower delivered to the L/C Issuer (with a copy to Agent) in the form of a L/C Application, appropriately completed and signed by a Responsible Officer of Borrower. Such L/C Application must be received by the L/C Issuer and Agent not later than 11:00 a.m. at least four Business Days (or such later date and time as Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such L/C Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such L/C Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally, Borrower shall furnish to the L/C Issuer and Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or Agent may require.

 

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(ii) Promptly after receipt of any L/C Application at the address set forth on Schedule 11.02 for receiving L/C Applications and related correspondence, the L/C Issuer will confirm with Agent (by telephone or in writing) that Agent has received a copy of such L/C Application from Borrower and, if not, the L/C Issuer will provide Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to Borrower and Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify Borrower and Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), Borrower shall reimburse the L/C Issuer through Agent in an amount equal to the amount of such drawing. If Borrower fails to so reimburse the L/C Issuer by such time, Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Available Amount and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available to Agent for the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to Borrower in such amount. Agent shall remit the funds so received to the L/C Issuer.

 

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(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the LC/ Issuer in connection with the foregoing. A certificate of the L/C Issuer submitted to any Lender (through Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

 

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(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from Borrower or otherwise, including proceeds of Cash Collateral applied thereto by Agent), Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by Agent.
(ii) If any payment received by Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

 

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(v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, Borrower or any Subsidiary, other than actual repayment.
Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with Borrower’s instructions or other irregularity, Borrower will immediately notify the L/C Issuer. Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer and Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit (including any such agreement applicable to an Existing Letter of Credit), and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.

 

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(h) L/C Fees. Borrower shall pay to Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the “L/C Fee”) for each Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. L/C Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the L/C Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all L/C Fees shall accrue at the Default Rate.
(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with respect to each commercial Letter of Credit, at the rate specified in the Fee Letter, computed on the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between Borrower and the L/C Issuer, computed on the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily amount available to be drawn under such Letter of Credit and on a quarterly basis in arrears; provided, however, that, notwithstanding the foregoing, such fronting fee shall be not less than $500 per annum. Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December, in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the L/C Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. In addition, Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such individual customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(j) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

 

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2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Available Amount, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and provided, further, that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, Borrower may borrow under this Section 2.04, prepay under Section 2.05 and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon Borrower’s irrevocable notice to Swing Line Lender and Agent, which may be given by telephone. Each such notice must be received by Swing Line Lender and Agent not later than 11:00 a.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to Swing Line Lender and Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of Borrower. Promptly after receipt by Swing Line Lender of any telephonic Swing Line Loan Notice, Swing Line Lender will confirm with Agent (by telephone or in writing) that Agent has also received such Swing Line Loan Notice and, if not, Swing Line Lender will notify Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to Borrower at its office by crediting the account of Borrower on the books of Swing Line Lender in immediately available funds. Lenders agree that Swing Line Lender may agree to modify the borrowing procedures used in connection with the Swing Line in its discretion and without affecting any of the obligations of Lenders hereunder other than notifying Agent of a Swing Line Loan Notice.

 

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(c) Refinancing of Swing Line Loans.
(i) Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of Borrower (which hereby irrevocably authorizes Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Available Amount and the conditions set forth in Section 4.02. Swing Line Lender shall furnish Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to Agent in immediately available funds for the account of Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to Borrower in such amount. Agent shall remit the funds so received to Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Committed Loans submitted by Swing Line Lender as set forth herein shall be deemed to be a request by Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to Agent for the account of Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to Agent for the account of Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), Swing Line Lender shall be entitled to recover from such Lender (acting through Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as foresaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

 

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(iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of Borrower to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if Swing Line Lender receives any payment on account of such Swing Line Loan, Swing Line Lender will distribute to such Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by Swing Line Lender.
(ii) If any payment received by Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by Swing Line Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by Swing Line Lender in its discretion), each Lender shall pay to Swing Line Lender its Applicable Percentage thereof on demand of Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. Agent will make such demand upon the request of Swing Line Lender. The obligations of Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. Swing Line Lender shall be responsible for invoicing Borrower for interest on the Swing Line Loans. Until each Lender funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of Swing Line Lender.
(f) Payments Directly to Swing Line Lender. Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to Swing Line Lender.

 

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2.05 Prepayments. (a) Borrower may, upon notice to Agent, at any time or from time to time voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof; and (iii) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurodollar Rate Loans are to be repaid, the Interest Period(s) of such Loans. Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each such prepayment shall be applied to the Committed Loans of Lenders in accordance with their respective Applicable Percentages.
(b) Borrower may, upon notice to Swing Line Lender (with a copy to Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by Swing Line Lender and Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Outstandings at any time exceed the Available Amount then in effect, Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Available Amount then in effect.
2.06 Termination or Reduction of Commitments. Borrower may, upon notice to Agent, terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) Borrower shall not terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Available Amount, and (iv) if, after giving effect to any reduction of the Aggregate Commitments, the L/C Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such excess. Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.
2.07 Repayment of Loans. (a) Borrower shall repay to Lenders on the Maturity Date the aggregate principal amount of Committed Loans outstanding on such date.

 

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(b) Borrower shall repay to Swing Line Lender each Swing Line Loan on the earlier to occur of (i) the date which is five Business Days after such Loan is made and (ii) the Maturity Date.
2.08 Interest. (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws, unless waived by the Required Lenders.
(iii) Upon the request of the Required Lenders, while any Event of Default exists, Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(b) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

 

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2.09 Fees. In addition to certain fees described in subsections (i) and (j) of Section 2.03:
(a) Unused Fee. Borrower shall pay to Agent for the account of each Lender in accordance with its Applicable Percentage an unused fee (the “Unused Fee”) equal to (i) on each day that the Total Outstandings are less than 50% of the amount of the Aggregate Commitments then in effect (or, if terminated, in effect immediately prior to such termination), 0.500% times the actual daily amount by which the Aggregate Commitments exceed the Total Outstandings and (ii) on each day that the Total Outstandings equal or exceed 50% of the amount of the Aggregate Commitments then in effect (or, if terminated, in effect immediately prior to such termination), 0.400% times the actual daily amount by which the Aggregate Commitments exceed the Total Outstandings, subject to adjustments as provided in Section 2.17. The Unused Fee shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Effective Date, and on the Maturity Date (and, if applicable, thereafter on demand). The Unused Fee shall be calculated quarterly in arrears. The Unused Fee shall accrue at all times following the Effective Date, including at any time during which one or more of the conditions in Article IV is not met. For purposes of calculating Total Outstandings under this Section 2.09(a), the Total Outstandings shall not include the Outstanding Amount of all Swing Line Loans.
(b) Other Fees. Borrower shall pay (i) each Arranger and Agent for their own respective accounts and (ii) to Agent, for the account of each Lender in accordance with their respective Applicable Percentages, fees in the amounts and at the times specified in the Fee Letter. All such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
(b) If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Total Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Agent for the account of the applicable Lenders, promptly on demand by the Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Agent, any Lender or the L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(i) or 2.08(a) or under Article XI. The Borrower’s obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.

 

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2.11 Evidence of Debt. (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by Agent in the ordinary course of business. The accounts or records maintained by Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by Lenders to Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of Agent in respect of such matters, the accounts and records of Agent shall control in the absence of manifest error. Upon the request of any Lender made through Agent, Borrower shall execute and deliver to such Lender (through Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a), each Lender and Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of Agent shall control in the absence of manifest error.
2.12 Payments Generally; Agent’s Clawback.
(a) General. All payments to be made by Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Agent. Unless Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not make available to Agent such Lender’s share of such Committed Borrowing, Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to Agent, then the applicable Lender and Borrower severally agree to pay to Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to Borrower to but excluding the date of payment to Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Agent in connection with the foregoing and (B) in the case of a payment to be made by Borrower, the interest rate applicable to Base Rate Loans. If Borrower and such Lender shall pay such interest to Agent for the same or an overlapping period, Agent shall promptly remit to Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its share of the applicable Committed Borrowing to Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment by Borrower shall be without prejudice to any claim Borrower may have against a Lender that shall have failed to make such payment to Agent.

 

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(ii) Payments by Borrower; Presumptions by Agent. Unless Agent shall have received notice from Borrower prior to the date on which any payment is due to Agent for the account of the Lenders or the L/C Issuer hereunder that Borrower will not make such payment, Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if Borrower has not in fact made such payment, then each of Lenders or the L/C Issuer, as the case may be, severally agrees to repay to Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Agent, at the greater of the Federal Funds Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation.
A notice of Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Borrower by Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, purchase its participation or to make its payment under Section 11.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

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2.13 Sharing of Payments. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than to Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
2.14 Increase in Commitments.
(a) Request for Increase. Provided there exists no Default, upon notice to Agent (which shall promptly notify the Lenders), Borrower may from time to time request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding $150,000,000 in the aggregate; provided that any such request for an increase shall be in a minimum amount of $10,000,000. At the time of sending such notice, Borrower (in consultation with Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders).
(b) Lender Elections to Increase. Each Lender shall notify the Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.

 

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(c) Notification by Agent; Additional Lenders. The Agent shall notify Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of Agent, the L/C Issuer and the Swing Line Lender (each of which approvals shall not be unreasonably withheld), Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate Commitments are increased in accordance with this Section, Agent and Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. Agent shall promptly notify Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition precedent to such increase, Borrower shall deliver to Agent at Borrower’s expense, (I) updated appraisals meeting the Appraisal Requirements for each Borrowing Base Property as may be requested by the Agent, (II) documents required under Section 5A.04(e), including Mortgage modifications and (III) a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) in the case of Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article VI and the other Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (B) no Default exists. Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.
(f) Conflicting Provisions. This Section shall supersede any provisions in Sections 2.13 or 11.01 to the contrary.
2.15 Extension of Maturity Date.
(a) Requests for Extension. Borrower may, by notice to Agent (who shall promptly notify the Lenders), extend the Maturity Date for a year from the Maturity Date not earlier than the date that is 90 days prior to Maturity Date and not later than the date that is 30 days prior to Maturity Date.

 

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(b) Minimum Extension Requirement. If Borrower has made a request pursuant to Section 2.15(a) to extend the Maturity Date, then, effective as of the Maturity Date, the Maturity Date of each Lender shall be extended to the date falling one year after the Maturity Date (except that, if such date is not a Business Day, such Maturity Date as so extended shall be the next preceding Business Day).
(c) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, each extension of the Maturity Date pursuant to this Section shall not be effective with respect to any Lender unless:
(i) no Default or Event of Default shall have occurred and be continuing on the date of such extension and after giving effect thereto;
(ii) the representations and warranties contained in this Agreement are true and correct in all material respects on and as of the date of such extension and after giving effect thereto, as though made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), provided that the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent financial statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 and the representation and warranty contained in Section 6.05 shall be deemed to refer to the most recent financial statements furnished pursuant to clause (a) or clause (b) of Section 7.01;
(iii) Borrower shall have delivered to Agent a certificate certifying and attaching the resolutions adopted by Borrower approving or consenting to such extension (which such resolutions may be certified in, and attached to, the certificate certifying to resolutions of Borrower delivered on or prior to the Effective Date pursuant to Section 4.01(a)(iii));
(iv) Borrower shall have delivered to Agent, at Borrower’s expense, appraisals meeting the Appraisal Requirements for each Borrowing Base Property in order for the Agent to confirm a Total Collateral Value of not less than $100,000,000; and
(v) Borrower shall have paid to Agent for the account of each Lender in accordance with its Applicable Percentage a fee equal to 0.350% times the Aggregate Commitments then in effect.
(d) Conflicting Provisions. This Section shall supersede any provisions in Section 2.13 or 11.01 to the contrary.

 

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2.16 Cash Collateral.
(a) Certain Credit Support Events. If the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing that remains unpaid, then, the L/C Issuer may, and at the request of the Required Lenders shall, demand that the Borrower immediately Cash Collateralize all or a portion of the then Outstanding Amount of all L/C Obligations, such amount to be determined by Required Lenders in their discretion, or the L/C Issuer, in its sole discretion, as the case may be. In addition, if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, upon the request of the Agent or the L/C Issuer, the Borrower shall immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender, promptly upon the written request of the Agent, the L/C Issuer or the Swing Line Lender, the Borrower shall deliver to Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by the Defaulting Lender) in the case of clause (ii) above.
(b) Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Borrower, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Agent, for the benefit of the Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.16(c). If at any time the Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting Lender will, promptly upon demand by the Agent, pay or provide to the Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral previously provided).
(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.16 or Sections 2.03, 2.04, 2.05, 2.17 or 9.02 in respect of Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.06(b))) or (ii) the Agent’s good faith determination that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.16 may be otherwise applied in accordance with Section 9.03), and (y) the Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

 

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2.17 Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 11.01.
(ii) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise, and including any amounts made available to the Agent by that Defaulting Lender pursuant to Section 11.08), shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third, if so determined by the Agent or requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth, if so determined by the Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.16; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

 

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(iii) Certain Fees. That Defaulting Lender (x) shall be not be entitled to receive any Unused Fee pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall (A) not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender and (B) not be required to pay the remaining amount of such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.03(h).
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03 and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided, that, (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Committed Loans of that Lender.
(v) Replacement of Lenders. During any period in which there is a Defaulting Lender, the Borrower may, pursuant to Section 11.13, require such Defaulting Lender to assign and delegate all of its interest, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations.
(b) Defaulting Lender Cure. If the Borrower, the Agent, Swing Line Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender (or if a Defaulting Lender takes such action necessary so that it would no longer be characterized as a Defaulting Lender), the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.17(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by Borrower to or on account of any obligation of Borrower hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if Borrower shall be required by any applicable law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section), Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) Borrower shall make such deductions, and (iii) Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by Borrower. Without limiting the provisions of subsection (a) above, Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by Borrower. Borrower shall indemnify Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender or the L/C Issuer (with a copy to Agent), or by Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by Borrower to a Governmental Authority, Borrower shall deliver to Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to Borrower (with a copy to Agent), at the time or times prescribed by applicable law or reasonably requested by Borrower or Agent (but in no event later than the date on which any amounts are payable under this Agreement), such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by Borrower or Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or Agent as will enable Borrower or Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.

 

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Without limiting the generality of the foregoing, in the event that Borrower is resident for tax purposes in the United States, any Foreign Lender shall deliver to Borrower and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of Borrower or Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(i) two duly completed and properly executed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States and the country of such Foreign Lender are parties,
(ii) two duly completed and properly executed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) two duly completed and properly executed copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed and properly executed together with such supplementary documentation as may be prescribed by applicable law to permit Borrower to determine the withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by Borrower or with respect to which Borrower has paid additional amounts pursuant to this Section, it shall pay to Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that Borrower, upon the request of Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to Agent, such Lender or the L/C Issuer in the event Agent, such Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to Borrower or any other Person.

 

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3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to Borrower through Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies Agent and Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, Borrower shall, upon demand from such Lender (with a copy to Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, Borrower shall also pay accrued interest on the amount so prepaid or converted and all amounts due under Section 3.05 in accordance with the terms thereof due to such prepayment or conversion.
3.03 Inability to Determine Rates. If the Required Lenders determine in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, Agent will promptly so notify Borrower and each Lender. Thereafter, the obligation of Lenders to make or maintain Eurodollar Rate Loans shall be suspended until Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurodollar Rate) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or

 

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(iii) impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to Borrower shall be conclusive absent manifest error. Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

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3.05 Compensation for Losses. Upon demand of any Lender (with a copy to Agent) from time to time, Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or
(b) any failure by Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefore as a result of a request for the Borrower pursuant to Section 11.13;
including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing. For purposes of calculating amounts payable by Borrower to Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, Borrower may replace such Lender in accordance with Section 11.13.

 

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3.07 Survival. All of Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Effective Date. This Agreement shall be effective subject to the satisfaction of the following conditions precedent:
(a) Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Effective Date or such other date as may be acceptable to the Agent, and each in form and substance satisfactory to Agent and each of the Lenders:
(i) fully executed counterparts of this Agreement, the Mortgages, the Lease Party Documents, the Guaranty and the other Loan Documents, together with all schedules and exhibits thereto, sufficient in number for distribution to Agent, each Lender and Borrower;
(ii) a Note executed by Borrower in favor of each Lender requesting a Note;
(iii) resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of each Loan Party certified by its secretary or assistant secretary as of the Effective Date, approving and adopting the Loan Documents to be executed by such Person, and authorizing the execution and delivery thereof;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each of CSI, the Borrower, CS Business Trust I, CS Business Trust II and each Subsidiary Guarantor as Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) the Organization Documents of each of the Loan Parties certified as of a date not more than 60 days prior to the Effective Date by the Secretary of State or comparable official of its state of organization or by the secretary or assistant secretary of such Loan Party, as applicable;
(vi) such documents and certifications as Agent may reasonably require to evidence that each of CSI, the Borrower, CS Business Trust I, CS Business Trust II and each Subsidiary Guarantor is duly organized or formed, and that each such Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;

 

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(vii) a favorable opinion of counsel to the Loan Parties addressed to Agent and each Lender, as to the matters concerning CSI, the Borrower, CS Business Trust I, CS Business Trust II and each Subsidiary Guarantor and the Loan Documents in form and substance reasonably satisfactory to Agent;
(viii) the favorable written opinions with respect to the Mortgages and related UCC financing statements for each of the Borrowing Base Properties of special local counsel to the Loan Parties dated the Effective Date, addressed to the Agent and the Lenders, and satisfactory to McGuireWoods LLP, counsel to the Agent, substantially in the form of Exhibit K;
(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements and there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of CSI and Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against CSI or any of its Subsidiaries, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xi) a duly completed pro forma Compliance Certificate as of December 31, 2010, signed by a Responsible Officer of Borrower or CSI;
(xii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(xiii) a Borrowing Notice, and if elected by the Borrower, an Interest Rate Selection Notice;
(xiv) an Available Amount Certificate (“Available Amount Certificate”) and an Eligible Property Compliance Certificate, each dated as of the Effective Date, in the form of Exhibits D and H, respectively, together with all exhibits thereto
(xv) evidence of the filing of Uniform Commercial Code financing statements reflecting the filing in all places required by applicable law to perfect the Liens of the Agent under the Security Instruments as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions, if any, as may be necessary under applicable law to perfect the Liens of the Agent under the Security Instruments as a first priority Lien in and to such other Collateral as the Agent may require in its reasonable discretion;

 

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(xvi) with respect to each Eligible Property identified as constituting a part of the Borrowing Base on the Effective Date, delivery or satisfaction of each of the requirements in Section 5A.04 applicable to such Eligible Property, as may be necessary to include such Eligible Property in the Borrowing Base as set forth therein;
(xvii) Uniform Commercial Code search results showing only those Liens as are reasonably acceptable to the Lenders; and
(xviii) such other assurances, certificates, documents, consents or opinions as Agent, the L/C Issuer, Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to Agent to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
Without limiting the generality of the provisions of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Agent shall have received notice from such Lender prior to the Effective Date specifying its objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:
(a) The representations and warranties of Borrower and each other Loan Party contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01.
(b) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c) Agent and, if applicable, the L/C Issuer or Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.

 

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Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Loans) submitted by Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V.
REAFFIRMATION OF CSI GUARANTY
5.01 CSI Guaranty. CSI hereby unconditionally, absolutely, continually and irrevocably reaffirms its guarantee to Agent, for the benefit of the Benefited Parties, the payment and performance in full of (a) Borrower’s prompt payment in full, when due or declared due and at all such times, of all Obligations and all other amounts pursuant to the terms hereof, the Notes, and all other Loan Documents and all Secured Cash Management Agreements and Secured Hedge Agreements heretofore, now or at any time or times hereafter owing, arising, due or payable from Borrower to any one or more of the Benefited Parties, including without limitation principal, interest, premium or fee (including, but not limited to, loan fees and attorneys’ fees and expenses); and (b) Borrower’s prompt, full and faithful performance, observance and discharge of each and every agreement, undertaking, covenant and provision to be performed, observed or discharged by Borrower hereunder and under all other Loan Documents (collectively, the “Guarantor’s Obligations”).
5.02 Payment. If Borrower shall default in payment or performance of any of the Obligations, whether principal, interest, premium, fee (including, but not limited to, loan fees and attorneys’ fees and expenses), or otherwise, when and as the same shall become due, whether according to the terms hereof, by acceleration, or otherwise, or upon the occurrence of any Event of Default hereunder that has not been cured or waived, then CSI shall, upon demand thereof by Agent or its successors or assigns as of the date of such demand, (i) fully pay to Agent, for the benefit of the Benefited Parties, an amount equal to all of the Guarantor’s Obligations then due and owing or declared to be due and owing, including for this purpose, in the event of any Event of Default under Section 9.01(f) hereof (irrespective of the applicability of any restriction on acceleration or other action as against any other Loan Party under any Debtor Relief Laws), the entire outstanding or accrued amount of all Obligations or (ii) perform such Guaranteed Liabilities, as applicable. For purposes of this Section 5.02, CSI acknowledges and agrees that the “Guarantor’s Obligations” shall be deemed to include any amount (whether principal, interest, premium, fees) which would have been accelerated in accordance with Section 9.02 hereof but for the fact that such acceleration could be unenforceable or is not allowed under any Debtor Relief Law.
5.03 Guaranty Absolute. The Guarantee made under this Article V is a Guarantee of payment and not of collection. The Guarantor’s Obligations shall be absolute and unconditional irrespective of, and CSI hereby expressly waives, to the extent permitted by law, any defense to its obligations under this Guarantee by reason of:
(a) any lack of legality, validity or enforceability of this Agreement, of any of the Notes, of any other Loan Document, or of any other agreement or instrument creating, providing security for, or otherwise relating to any of the Guarantor’s Obligations or any other guaranty of any of Borrower’s Obligations (the Loan Documents and all such other agreements and instruments being collectively referred to as the “Related Agreements”);

 

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(b) any action taken under any of the Related Agreements, any exercise of any right or power therein conferred, any failure or omission to enforce any right conferred thereby, or any waiver of any covenant or condition therein provided;
(c) any acceleration of the maturity of any of Borrower’s Obligations or of any other obligations or liabilities of any Person under any of the Related Agreements;
(d) any release, exchange, non-perfection, lapse in perfection, disposal, deterioration in value, or impairment of any security for any of Borrower’s Obligations or for any other obligations or liabilities of any Person under any of the Related Agreements;
(e) any dissolution of Borrower or any other party to a Related Agreement, or the combination or consolidation of Borrower or any other party to a Related Agreement into or with another entity or any transfer or disposition of any assets of Borrower or any other party to a Related Agreement;
(f) any extension (including without limitation extensions of time for payment), renewal, amendment, restructuring or restatement of, any acceptance of late or partial payments under, or any change in the amount of any borrowings or any credit facilities available under, this Agreement, any of the Notes or any other Loan Document or any other Related Agreement, in whole or in part;
(g) the existence, addition, modification, termination, reduction or impairment of value, or release of any other guaranty (or security therefor) of Borrower’s Obligations (including without limitation obligations arising under any other Guarantee now or hereafter in effect);
(h) any waiver of, forbearance or indulgence under, or other consent to any change in or departure from any term or provision contained in this Agreement, any other Loan Document or any other Related Agreement, including without limitation any term pertaining to the payment or performance of any of Borrower’s Obligations or any of the obligations or liabilities of any party to any other Related Agreement;
(i) any other circumstance whatsoever (with or without notice to or knowledge of CSI) which may or might in any manner or to any extent vary the risks of CSI, or might otherwise constitute a legal or equitable defense available to, or discharge of, a surety or a guarantor, including without limitation any right to require or claim that resort be had to Borrower or any other Loan Party or to any collateral in respect of the Borrower’s Obligations or Guarantor’s Obligations, other than actual repayment in full of the Borrower’s Obligations or the Guarantor’s Obligations.
It is the express purpose and intent of the parties hereto that the Guarantee made under this Article V shall be absolute and unconditional under any and all circumstances and shall not be discharged except by payment as herein provided.

 

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5.04 Reinstatement. CSI agrees that the Guarantee made under this Article V shall continue to be effective or be reinstated, as the case may be, at any time payment received by Agent under this Agreement is rescinded or must be restored for any reason, or is repaid by any Benefited Party in whole or in part in good faith settlement of any pending or threatened avoidance claim.
5.05 Waiver; Subrogation.
(a) CSI hereby waives notice of the following events or occurrences: (i) the Lenders heretofore, now or from time to time hereafter making Credit Extensions and issuing Letters of Credit and otherwise loaning monies or giving or extending credit to or for the benefit of Borrower, whether pursuant to this Agreement or the Notes or any other Loan Document or any amendments, modifications, or supplements thereto, or replacements or extensions thereof; (ii) the Benefited Parties or Borrower heretofore, now or at any time hereafter, obtaining, amending, substituting for, releasing, waiving or modifying this Agreement, the Notes or any other Loan Documents; (iii) presentment, demand, default, non-payment, partial payment and protest; (iv) any Benefited Party heretofore, now or at any time hereafter granting to Borrower (or any other party liable to the Benefited Parties on account of Borrower’s Obligations) or to any other Guarantor any indulgence or extensions of time of payment of Borrower’s Obligations, and (v) any Benefited Party heretofore, now or at any time hereafter accepting from Borrower, any other Guarantor or any other Person, any partial payment or payments on account of Borrower’s Obligations or any collateral securing the payment thereof or Agent settling, subordinating, compromising, discharging or releasing the same. CSI agrees that each Benefited Party may heretofore, now or at any time hereafter do any or all of the foregoing in such manner, upon such terms and at such times as each Benefited Party, in its sole and absolute discretion, deems advisable, without in any way or respect impairing, affecting, reducing or releasing CSI from its Guarantor’s Obligations, and CSI hereby consents to each and all of the foregoing events or occurrences.
(b) CSI hereby agrees that payment or performance by CSI of the Guarantee made under this Article V may be enforced by Agent on behalf of the Benefited Parties upon demand by Agent to CSI without Agent being required, and CSI expressly waives any right it may have to require Agent, to (i) prosecute collection or seek to enforce or resort to any remedies against Borrower or any other Guarantor, or (ii) seek to enforce or resort to any remedies with respect to any security interests, Liens or encumbrances granted to Agent by Borrower, any other Guarantor or any other Person on account of Borrower’s Obligations or any Guarantee thereof, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY CSI THAT DEMAND UNDER THIS ARTICLE V MAY BE MADE BY AGENT, AND THE PROVISIONS HEREOF ENFORCED BY AGENT, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THIS AGREEMENT. Neither Agent nor any Lender shall have any obligation to protect, secure or insure any of the foregoing security interests, Liens or encumbrances on the properties or interests in properties subject thereto.

 

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(c) CSI further agrees that it shall have no right of subrogation (unless and until the occurrence of the Facility Termination Date), reimbursement or indemnity, nor any right of recourse to security for Borrower’s Obligations. This agreement is expressly intended to prevent the existence of any claim in respect to such reimbursement by CSI against the estate of Borrower within the meaning of Section 101 of the Bankruptcy Code of the United States, and to prevent CSI from constituting a creditor of Borrower in respect of such reimbursement within the meaning of Section 547(b) of the Bankruptcy Code of the United States in the event of a subsequent case involving Borrower. If an amount shall be paid to CSI on account of such subrogation rights at any time prior to termination of this Agreement in accordance with the provisions herein, such amount shall be held in trust for the benefit of the Benefited Parties and shall forthwith be paid to Agent, for the benefit of the Benefited Parties, to be credited and applied upon Guarantor’s Obligations, whether matured or unmatured, in accordance with the terms of this Agreement.
5.06 Waiver of Set-Off. CSI waives any right to assert against Agent or any Lender as a defense, counterclaim, set-off, recoupment or cross claim in respect of the Guarantor’s Obligations, any defense (legal or equitable) or other claim which CSI may now or at any time hereafter have against Borrower or the Benefited Parties without waiving any additional defenses, set-offs, counterclaims or other claims otherwise available to CSI. If at any time hereafter the Benefited Parties employ counsel for advice or other representation to enforce any of the Guarantor’s Obligations that arise out of an Event of Default, then, in any of the foregoing events, all of the reasonable attorneys’ fees arising from such services and all expenses, costs and charges in any way or respect arising in connection therewith or relating thereto shall be paid by CSI to Agent, for the benefit of the Benefited Parties, on demand.
ARTICLE VA.
SECURITY
5A.01 Security. As security for the full and timely payment and performance of all Obligations, the Loan Parties shall do or cause to be done all things necessary in the reasonable opinion of the Agent to grant to the Agent for the benefit of the Lenders, a duly perfected first priority mortgage and assignment of leases and rents on each Pledged Property (and all improvements, fixtures, and other appurtenances thereto in which the applicable Loan Party has an interest, as may be provided in the Mortgage for such Pledged Property) and a duly perfected first priority security interest in all of the applicable Loan Party’s now owned or hereafter acquired personal property related to such Pledged Property (as may be provided in the Mortgage for such Pledged Property), subject in each case to no prior Lien or other encumbrance or restriction on transfer (other than restrictions on transfer imposed by applicable securities laws), other than Permitted Encumbrances.
5A.02 Further Assurances. At the request of the Agent, the Borrower will or will cause any Guarantor, as the case may be to execute, by its duly authorized officers, alone or with the Agent, any certificate, instrument, statement or document, or to procure any such certificate, instrument, statement or document, or to take such other action (and pay all connected costs) which the Agent reasonably deems necessary from time to time to create, continue or preserve the liens and security interests in the Collateral (and the perfection and priority thereof) of the Agent contemplated hereby and by the other Loan Documents.

 

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5A.03 Information Regarding Collateral. The Borrower represents, warrants and covenants that the chief executive office of the Borrower and each other Person providing Collateral pursuant to any of the Security Instruments (each, a “Grantor”) at the Effective Date is located at the address or addresses specified on Schedule 5A.03. The Borrower shall not change, or permit any other Grantor to change, the location of its chief executive office except upon giving not less than thirty (30) days’ prior written notice to the Agent and taking or causing to be taken all such action at the Borrower’s or such other Grantor’s expense as may be reasonably requested by the Agent to perfect or maintain the perfection of the Lien of the Agent in any Collateral.
5A.04 Borrowing Base. (a) Any Eligible Property may become a Pledged Property and be included in the Borrowing Base as of the Effective Date upon receipt by the Agent of an executed Mortgage encumbering such Eligible Property and (A) a pro forma Compliance Certificate giving effect to the inclusion of such Eligible Property in the Borrowing Base, including a calculation of annualized Net Operating Income for such Property; (B) an Available Amount Certificate; (C) historical (to the extent such Property has been operational for a calendar quarter or more) and pro forma operating statements and occupancy reports (to the extent such statements or reports exist, the Borrower hereby acknowledging that the absence of such statements or reports may impair the ability to obtain Required Lender approval) with respect to such Eligible Property; (D) a Phase I environmental assessment (and, if required or recommended by the results of the Phase I environmental assessment, a Phase II environmental assessment) with respect to such Eligible Property provided, however, with respect to each of the Existing Eligible Properties, the previously approved Phase I environmental assessment shall be satisfactory to the Agent if supplemented by an environmental questionnaire delivered by the owner or ground lessee of such Existing Eligible Property, in form and substance reasonably satisfactory to the Agent and dated not earlier than six months prior to the Effective Date; (E) a site plan and current as-built survey (or, with respect to an Existing Eligible Property, the previously delivered survey and title insurance covering over matters that would be disclosed by a current survey to be provided in the form of updated access, survey and comprehensive endorsements, in form and substance satisfactory to the Agent), and certificates as to federally designated flood zones with respect to such Eligible Property; (F) a title insurance commitment for an ALTA loan title insurance policy with respect to such Eligible Property (or, with respect to each of the Existing Eligible Properties, an endorsement to the existing title insurance policy updating the title and policy coverage) in an amount acceptable to the Agent insuring the first priority lien of the Mortgage encumbering such Eligible Property, or the Ground Lease leasehold estate of the Grantor in the Eligible Property, as applicable, and reflecting no title exceptions other than the Permitted Encumbrances; (G) an appraisal of such Eligible Property by a Qualified Appraiser, which appraisal shall be prepared in accordance with the requirements set forth in Schedule 5A.04(a) hereto, ordered by the Agent (in the name of and at the sole expense of the Borrower); (H) an Eligible Property Compliance Certificate for such Eligible Property, satisfactory to the Agent; (I) evidence of insurance for such Eligible Property as required under the Mortgage for such Eligible Property; (J) a general description of such Eligible Property’s location and features; (K) a Uniform Commercial Code search showing no Liens on such Eligible Property other than the Permitted Encumbrances; and (L) any other Real Property Support Documents for such Eligible Property as may be required by Agent. In the case of Eligible Properties requested to be included in the Borrowing Base after the Effective Date, the Agent shall make its determination as to the

 

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inclusion in the Borrowing Base of such Eligible Property qualifying as such by compliance with items (a)-(f) of the definition of “Eligible Property” within 10 Business Days of receipt by the Agent of the Borrower’s request therefor together with the documentation described in this Section 5A.04. The Required Lenders shall make their determination as to the inclusion in the Borrowing Base of any such Eligible Property qualifying as such under item (g) of the definition of “Eligible Property” within 15 Business Days of receipt from the Agent of copies of the Borrower’s request therefor together with the documentation described in this Section 5A.04. Upon the approval by the Agent (or the Required Lenders, as applicable) of the inclusion of such Eligible Property in the Borrowing Base, the Borrower or applicable Loan Party shall execute or cause to be executed the Mortgage with respect to such Eligible Property. Upon (a) execution, delivery and recordation, as applicable, of the Mortgage and the Lease Party Documents relating to such Eligible Property and any other documents required by the Agent, (b) delivery of a loan title insurance policy in form and substance reasonably satisfactory to Agent and insuring the lien of the Mortgage as described above, (c) delivery of a favorable opinion of local counsel to the Grantor under the Mortgage in the state where such Eligible Property is located, in the form of Exhibit K and addressed to the Agent and each Lender, as to such matters concerning such Grantor and the Loan Documents as the Agent may reasonably request, (d) delivery of Uniform Commercial Code financing statements and fixture filings suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Agent under such Mortgage and other Security Instruments related to such Eligible Property as a first priority Lien (subject only to Permitted Encumbrances) as to items of Collateral in which a security interest may be perfected by the filing of financing statements or fixture filings, and such other documents and/or evidence of other actions as may be necessary under applicable Law to perfect the Liens of the Agent under the Mortgage and other Security Instruments related to such Eligible Property as a first priority Lien in and to such other Collateral as the Agent may require, and (e) delivery of the Grantor Authority Documents for the Grantor executing such Mortgage, such Eligible Property shall become a part of the Borrowing Base (for so long as it maintains the criteria of eligibility set forth in the definition of “Eligible Property”) and the Borrower shall deliver to the Agent an updated Schedule 5A.04(b) reflecting such additional Pledged Property.
(b) Upon request of the Borrower, the Mortgage for any Pledged Property may be terminated and discharged and such Pledged Property released provided that: (i) funds are delivered to the Agent for the prepayment of Loans as provided in Section 2.05(a); (ii) the Borrower delivers to the Agent a pro forma Compliance Certificate and a pro forma Available Amount Certificate giving effect to such release; (iii) the Borrower delivers to the Agent an updated Schedule 5A.04(b) reflecting the release of such Pledged Property; and (iv) no Default or Event of Default has occurred or is continuing. All reasonable costs, expenses and attorneys’ fees incurred by the Agent or the Trustee under the Mortgage in connection with the release of any Pledged Property pursuant to this Section 5A.04(b) shall be reimbursed by the Borrower pursuant to Section 11.04(a) hereof. No Pledged Property will be released from the applicable Mortgage until the Agent has received the amount of funds, if any, required by this Section 5A.04(b), together with any amounts required, if any, owing under Section 3.05.

 

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(c) In the event that there shall be made any Additions or Enhancements to a Borrowing Base Property, which Additions or Enhancements have a cost or value (as evidenced in writing in a form and manner satisfactory to the Agent) in excess of the lesser of (i) $2,500,000 or (ii) 20% of the Appraised Value (without giving effect to such Additions or Enhancements) of such Borrowing Base Property, the Borrower shall deliver to the Agent, not later than 30 Business Days after completion of such Addition or Enhancement, (A)(i) if the Additions or Enhancements include additional real property (either leased or in fee), a modification to the related Mortgage amending the legal description of such Borrowing Base Property to include such additional real property, (ii) a new appraisal meeting the Appraisal Requirements for such Borrowing Base Property if the Borrower intends to include such Addition or Enhancement in the Borrowing Base and (iii) a new or updated survey with respect to such Borrowing Base Property if either the Additions or Enhancements include additional real property (either leased or in fee) or the footprint of the Improvements (as defined in the applicable Mortgage) changes, (B) an endorsement to the existing title insurance policy covering such Borrowing Base Property adding the Additions or Enhancements to the description of the insured property (if the Additions or Enhancements include additional real property), increasing the amount of such title insurance to reflect the increase in value and updating the time and date of such policy to the time and date of recording of the modification to the related Mortgage described in (A) above and reflecting no title exceptions other than Permitted Encumbrances.
(d) For purposes of calculating the Appraised Value of the Pledged Properties included in the Borrowing Base, the Borrower shall comply with the Appraisal Requirements set forth in Schedule 5A.04(a) attached hereto. The Lenders agree that the Agent and the Borrower may from time to time modify or amend the Appraisal Requirements so long as such modification or amendment does not adversely affect the interest of the Lenders hereunder.
(e) Prior to any increase, through the operation of Section 2.14, in the Aggregate Commitments that would cause the Aggregate Commitments to exceed $200,000,000, the Borrower (i) shall cause to be recorded Mortgage modifications increasing the maximum amount secured under the Security Instruments to such increased amount; provided, however, that, with respect to any Mortgage filed in a state with significant tax or recording costs or other expenses, then, in the Agent’s sole discretion, the Mortgage modification may provide for a lesser maximum amount secured so long as such maximum amount secured is at least equal to 120% of the Appraised Value of the property subject to such Mortgage, (ii) shall obtain either (A) new title insurance policies insuring such Mortgages reflecting the appropriate coverage and insuring the first priority of such Mortgage, subject only to Permitted Encumbrances or (B) endorsements to each of the original title insurance policies insuring such Mortgages updating the time and date of coverage to the date and time of recording such Mortgage modification and insuring the continued first priority of such Mortgage, subject only to the Permitted Encumbrances and (iii) shall deliver to the Agent such other documents (including title endorsements and Grantor Authority Documents) as may be reasonably required by the Agent and the title insurer.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Each of CSI and Borrower represent and warrant to Agent and the Lenders that:
6.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, and (d) is in compliance with all Laws; except in each case referred to in clause (b)(i), (c) or (d), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

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6.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in compliance with all Contractual Obligations referred to in clause (b)(i), except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document except for filings and recordings necessary to perfect the Liens created under the Security Instruments.
6.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms.
6.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of CSI and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of CSI and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated balance sheets of CSI and its Subsidiaries dated December 31, 2010 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal year ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of CSI and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.

 

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(c) [Reserved.]
(d) Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
6.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of CSI and Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against CSI or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 6.06, either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect, and there has been no adverse change in the status, or financial effect on any Loan Party or any Subsidiary thereof, of the matters described on Schedule 6.06.
6.07 No Default. Neither CSI, Borrower nor any Subsidiary is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
6.08 Ownership of Property; Liens. Each of CSI, Borrower and each Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by Section 8.01.
6.09 Environmental Compliance. CSI, Borrower and each Subsidiary conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof Borrower has reasonably concluded that, except as specifically disclosed in Schedule 6.09, such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.10 Insurance. The properties of CSI, Borrower and each Subsidiary are insured with financially sound and reputable insurance companies not Affiliates of CSI, in such amounts (after giving effect to any self-insurance compatible with the following standards), with such deductibles and covering such risks (including any and all acts of terrorism) as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where Borrower or the applicable Subsidiary operates.

 

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6.11 Taxes. CSI, Borrower and each Subsidiary have filed all United States Federal and state income and other material tax returns and reports required to be filed, and have paid all United States Federal and state income and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against CSI, Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.
6.12 ERISA Compliance. (a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other United States Federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of CSI and Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification. CSI, Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of CSI and Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither CSI, Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither CSI, Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither CSI, Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except, to the extent, with respect to clauses (i) through (v) collectively, as could not reasonably be expected to have a Material Adverse Effect.
6.13 Subsidiaries. As of the Effective Date, neither CSI nor Borrower has any Subsidiaries other than those specifically disclosed in Part (a) of Schedule 6.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by a Loan Party in the amounts specified on Part (a) of Schedule 6.13 free and clear of all Liens. Neither CSI nor Borrower has any equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule 6.13. All of the outstanding Partnership Units in Borrower have been validly issued and are fully paid and nonassessable. As of the Effective Date, the Excluded Subsidiaries are those entities described in Part (c) of Schedule 6.13.

 

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6.14 Margin Regulations; Investment Company Act. Neither CSI nor Borrower is engaged nor will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
6.15 Disclosure. Each of CSI and Borrower have disclosed to Agent and Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
6.16 Compliance with Laws. Each of CSI, Borrower and each Subsidiary is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
6.17 Intellectual Property; Licenses, Etc. CSI, Borrower and each Subsidiary owns, or possesses the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person. To the best knowledge of CSI and Borrower, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by CSI, the Borrower or any Subsidiary infringes upon any rights held by any other Person. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of CSI or Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
6.18 Solvency. On and after the Effective Date, Borrower, individually, and the Borrower and the Guarantors, taken as a whole, are Solvent, measured after giving effect to all Borrowings under this Agreement on the Effective Date and all Borrowings thereafter.
6.19 REIT Status. CSI has done all things necessary to qualify as a REIT, has been organized in conformity with the requirements for qualification as a REIT and its method of operation as described in the Registration Statement will permit it to meet the requirements for qualification and taxation as an REIT.

 

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6.20 Ground Leases; Appraised Value; Net Operating Income; Existing Surveys. (a) Each of the Ground Leases is in full force and effect and the Borrower, CSI and each Guarantor is in compliance with all of the terms and conditions of such Ground Leases; none of the Ground Leases have been amended or modified, except as expressly permitted under the applicable Ground Lessor Agreement or this Agreement, or as otherwise permitted by the Agent, since the date of the Eligible Property Compliance Certificate for the Pledged Property to which it relates; and neither the Borrower nor CSI has any information which leads it to believe that the Appraised Value of the Pledged Properties as set forth on Schedule 5A.04(a) is higher than it should be; and
(b) To the best knowledge of CSI, the Borrower and each Subsidiary, with respect to each Borrowing Base Property, since the date of the most recent Available Amount Certificate, no event has occurred or condition exists that could reasonably be expected to have a material adverse effect upon the Appraised Value or Net Operating Income of such Borrowing Base Property.
(c) For each of the surveys previously delivered to the Agent for the Existing Eligible Properties described on Schedule 6.20, as of the Effective Date, there are no buildings or other material exterior improvements or changes to the boundary lines that are not depicted on such surveys.
ARTICLE VII.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, CSI and Borrower, as applicable, shall, and shall (except in the case of the covenants set forth in Sections 7.01, 7.02, 7.03 and 7.12) cause each Subsidiary (other than Excluded Subsidiaries) to:
7.01 Financial Statements. Deliver to Agent a sufficient number of copies for delivery by Agent to each Lender, in form and detail satisfactory to Agent and the Required Lenders:
(a) not later than five days following the filing of CSI’s Form 10-K with the SEC for each fiscal year of CSI, but in any event within 90 days after the end of each fiscal year of CSI, a consolidated balance sheet of CSI and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, certified by the chief executive officer or the chief financial officer of CSI as fairly presenting the financial condition of CSI and its Subsidiaries and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accounting firm of nationally recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; and

 

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(b) not later than five days following the filing of CSI’s Form 10-Q with the SEC for the first three fiscal quarters of each fiscal year of CSI, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of CSI, a consolidated balance sheet of CSI and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of CSI’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by the chief executive officer or the chief financial officer of CSI as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of CSI and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section 7.02(d), neither CSI nor the Borrower shall be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of CSI and the Borrower to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.
7.02 Certificates; Other Information. Deliver to Agent a sufficient number of copies for delivery by Agent to each Lender, in form and detail satisfactory to Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Section 7.01(a), (i) a certificate of CSI’s independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default under the financial covenants set forth herein or, if any such Default shall exist, stating the nature and status of such event and (ii) an annual forecast of the consolidated statements of income and operations and cash flows for CSI and its Subsidiaries;
(b) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b):
(i) a duly completed Compliance Certificate and a duly completed Available Amount Certificate, each signed by the chief financial officer of CSI;
(ii) a duly completed statement of Funds From Operations of Borrower; and
(iii) a duly completed report of newly acquired Properties by Borrower and any Subsidiary, including each such Property’s net operating income, cost, and mortgage debt, if any;
(c) promptly after any request by Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of CSI by independent accountants in connection with the accounts or books of CSI or any Subsidiary, or any audit of any of them;

 

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(d) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of CSI, and copies of all annual, regular, periodic and special reports and registration statements which CSI may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to Agent pursuant hereto;
(e) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;
(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(g) promptly, such additional information regarding the business, financial or corporate affairs of Borrower, any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as Agent or any Lender may from time to time reasonably request; and
(h) promptly upon commencement of any Addition or Enhancement, information regarding the Borrowing Base Property to which such Addition or Enhancement relates, the expected cost and completion date of such Addition or Enhancement and such other information regarding such Addition or Enhancement or the Agent may reasonably request.
Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02(a), (b) or (d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which CSI posts such documents, or provides a link thereto on CSI’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on CSI’s behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent); provided that CSI shall deliver paper copies of such documents to the Agent or any Lender that requests CSI to deliver such paper copies until a written request to cease delivering paper copies is given by the Agent or such Lender. Notwithstanding anything contained herein, in every instance CSI shall be required to provide paper copies of the Compliance Certificates required by Section 7.02(b) to the Agent. Except for such Compliance Certificates, the Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by CSI with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

 

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Borrower hereby acknowledges that (a) Agent and/or Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to Borrower or its securities) (each, a “Public Lender”). Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” so long as Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, Borrower shall be deemed to have authorized Agent, Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) Agent and Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor”. Notwithstanding the foregoing, Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC”.
7.03 Notices. Promptly notify Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of CSI, Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between CSI, Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting CSI, Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event; and
(d) of any material change in accounting policies or financial reporting practices by CSI, Borrower or any Subsidiary.
Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of Borrower setting forth details of the occurrence referred to therein and stating what action Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
7.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by CSI, Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.

 

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7.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 8.04 or 8.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
7.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities.
7.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance companies that are not Affiliates of CSI, insurance with respect to its properties and business against loss or damage (including loss or damage resulting from any and all acts of terrorism) of the kinds customarily insured against by Persons engaged in the same or similar business of such types and in such amounts (after giving effect to any self-insurance compatible with the following standards) as are customarily carried under similar circumstances by such other Persons, and each such insurance policy shall provided for not less than (i) 30 days’ prior notice to Agent of cancellation of such insurance due to (1) physical changes in the properties, which increase the likelihood of a covered loss, (2) a material increase in the likelihood of a covered loss or (3) loss or decrease of the applicable insurance company’s reinsurance covering the insurance provided by such insurance policy and (ii) 10 days’ prior notice to Agent of cancelation of such insurance for any reason other than those listed in the foregoing clause (i).
7.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, write, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
7.09 Books and Records. (a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of CSI, Borrower or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over CSI, Borrower or such Subsidiary, as the case may be.

 

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7.10 Inspection Rights. Permit representatives and independent contractors of Agent, including upon the request of the Required Lenders, to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of and at such reasonable times during normal business hours Borrower (but no more than two times during any 12 month period so long as no Event of Default shall have occurred and be continuing), upon reasonable advance notice to Borrower; provided, however, that when an Event of Default exists Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of Borrower at any time during normal business hours and without advance notice, subject to the terms of any tenant leases and Lease Party Documents applicable to such property.
7.11 Use of Proceeds. Use the proceeds of the Credit Extensions for (a) working capital and general corporate purposes, including financing acquisitions and development activity, and (b) to refinance existing and future indebtedness.
7.12 Financial Covenants.
(a) Total Leverage Ratio. Maintain at all times during any period set forth below a Total Leverage Ratio of no greater than the ratio set forth below opposite such period. Unless otherwise requested by the Agent, this ratio will be calculated for reporting purposes at the end of each reporting period for which this Agreement requires delivery of financial statements.
         
    Maximum Total  
Applicable Period   Leverage Ratio  
 
     
Effective Date through March 31, 2013
    0.65 to 1.00  
April 1, 2013 and thereafter
    0.60 to 1.00  
(b) Secured Recourse Indebtedness. Maintain at all times a ratio of Secured Recourse Indebtedness of CSI and its Subsidiaries (excluding Indebtedness incurred under the Loan Documents) to Consolidated Total Asset Value of 0.20 to 1.00 or less. Unless otherwise requested by the Agent, this ratio will be calculated for reporting purposes at the end of each reporting period for which this Agreement requires delivery of financial statements.
(c) Fixed Charge Coverage Ratio. Maintain as of the end of each fiscal quarter of CSI a ratio of Consolidated Adjusted EBITDA to Consolidated Fixed Charges of no less than the ratio set forth below opposite such fiscal quarter. This ratio will be calculated at the end of each reporting period for which this Agreement requires delivery of financial statements, using the results of the four consecutive fiscal quarter period of CSI ending with that reporting period.
         
    Minimum Fixed Charge  
Four Fiscal Quarters Ending   Coverage Ratio  
 
       
Effective Date through March 31, 2012
    1.35 to 1.00  
April 1, 2012 and thereafter
    1.50 to 1.00  

 

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(d) Consolidated Tangible Net Worth. Maintain at all times Consolidated Tangible Net Worth equal to at least the sum of the following:
(i) $237,105,600.00; plus
(ii) 80% of Net Proceeds of Equity Issuances issued after the Effective Date.
(e) Facility Interest Coverage. Maintain at all times a ratio of Net Operating Income from Borrowing Base Properties to Facility Interest Expense of 1.50 to 1.00 or greater. This ratio will be calculated for reporting purposes at the end of each reporting period for which this Agreement requires delivery of financial statements, using the results of the four consecutive fiscal quarter period of CSI ending with that reporting period.
7.13 Additional Guarantors. Notify Agent at the time that any Person becomes a Material Subsidiary, and promptly thereafter (and in any event within 30 days, cause such Person to (a) become a Guarantor by executing and delivering to Agent a counterpart of the Guaranty Joinder Agreement or such other document as Agent shall deem appropriate for such purpose, and (b) deliver to Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (a) against such Person), all in form, content and scope reasonably satisfactory to Agent.
7.14 REIT Qualification; Listing on Securities Exchange. Subject to the limitations set forth in Section 8.06, with respect to CSI, do all things required or necessary to (a) qualify as and maintain its qualification as a REIT and obtain, at Agent’s request but only to the extent that an Event of Default has occurred and is continuing, an opinion of counsel acceptable to Agent as to CSI’s status as a REIT and as to CSI’s power and authority to conduct its business as a REIT and (b) maintain a listing on the New York Stock Exchange (NYSE) or NASDAQ.
7.15 Ownership of Borrower. With respect to CSI, (a) ensure that CS Business Trust I (unless CSI (or a successor to CS Business Trust I that is wholly-owned by CSI and is a Guarantor) is the sole general partner of the Borrower) remains the sole general partner of Borrower and owns not less than 1% of the Partnership Units of Borrower, and (b) ensure that CSI Controls the Borrower.
7.16 Borrowing Base Requirements. Cause the Borrowing Base Properties to at all times maintain a minimum aggregate Occupancy Rate of not less than 80%, and the Borrowing Base to consist of not less than ten Borrowing Base Properties that are not Development Properties (i) having an aggregate Occupancy Rate of not less than 80%, (ii) having an aggregate Appraised Value of not less than $100,000,000 and (iii) which have a loan to value ratio (which such ratio shall include the Outstanding Amount of all Loans and L/C Obligations) of no more than (a) from the Effective Date until March 1, 2013, 70% and (b) from March 1, 2013 and each date thereafter, 65%.

 

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7.17 Post-closing Surveys. Not later than the 90th day following the Effective Date, deliver to the Administrative Agent a new survey for each Borrowing Base Property listed on Schedule 7.17 and updated insurance coverage as to survey matters for each such property, including a comprehensive endorsement, in form and substance satisfactory to the Agent (collectively, “Insurance Coverage”); provided, however, if any such Insurance Coverage is not delivered by such date because of a survey or other title issue with respect to the related Borrowing Base Property, the Borrower shall use its commercially reasonable efforts (including but not limited to remediating such title or survey issues) to cause such Insurance Coverage to be issued prior to the 180th day following the Effective Date; provided, further, that if, in the Administrative Agent’s reasonable discretion, (i) the Borrower is diligently pursuing remediation to any such title or survey problem, the Administrative Agent may grant the Borrower an additional period following such 180 day period (such extension not to exceed 90 days) to deliver such Insurance Coverage or (ii) such title or survey issue does not materially affect the use and value of the related Borrowing Base Property, the Administrative Agent may waive the requirement that Insurance Coverage be delivered with respect to such Borrowing Base Property. If the new survey for any Borrowing Base Property reveals a change in the boundary lines for such property, Borrower further agrees to promptly execute a Mortgage modification to modify the Mortgage for such Borrowing Base Property to correct the legal description thereof and to obtain an endorsement to the existing title policy insuring such Mortgage, updating the time and date of coverage through the time and date of recording such Mortgage modification and insuring the continued first priority of such Mortgage, subject only to the Permitted Encumbrances.
7.18 Post-Effectiveness Obligations. The Borrower hereby agrees to deliver, or cause to be delivered, to the Administrative Agent, no later than 30 days after the Effective Date, (i) a favorable opinion of counsel to Erdman, addressed to the Administrative Agent and each Lender, as to the due authorization of the Guaranty, and any other Loan Document to which Erdman is a party, by Erdman and (ii) a copy of the Articles of Incorporation of Erdman, certified to as of a date no more than 30 days prior to the Effective Date by the Wisconsin Secretary of State, each in form and substance reasonably satisfactory to the Administrative Agent.
ARTICLE VIII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, CSI and Borrower, as applicable, shall not, nor shall they permit any Subsidiary (other than Excluded Subsidiaries) to, directly or indirectly:
8.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 8.01 and any renewals or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 8.03(b);
(c) Liens for taxes not yet due or payable or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

 

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(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) with respect to any real property which is not a Pledged Property, easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person or are otherwise disclosed on the applicable title commitment and acceptable to the Agent;
(h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 9.01(h);
(i) Liens securing Indebtedness permitted under Section 8.03(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(j) Liens securing Non-recourse Indebtedness permitted under Section 8.03(g); and
(k) with respect to any real property which is a Pledged Property, Permitted Liens and Permitted Encumbrances.
8.02 Investments. Make any Investments, except:
(a) Investments held by CSI, Borrower or any Subsidiary in the form of cash equivalents or short-term investment grade marketable debt securities;
(b) advances to officers, directors and employees of CSI, Borrower and Subsidiaries in an aggregate amount not to exceed $500,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
(c) (i) Investments of CSI in CS Business Trust I or CS Business Trust II, (ii) Investments by CSI, CS Business Trust I and CS Business Trust II in Borrower, (iii) Investments by Borrower in any Subsidiary of Borrower and (iv) Investments of any Subsidiary in Borrower or in any other Subsidiary of the Borrower;

 

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(d) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 8.03;
(f) Investments in Swap Contracts permitted under Section 8.03(d);
(g) Permitted Acquisitions;
(h) Investments by the Borrower or any of its Subsidiaries in income-producing Properties not constituting (i) Unimproved Land, (ii) Mortgage Receivables or (iii) Development Properties; and
(i) other Investments by the Borrower or any of its Subsidiaries, provided that Investments in:
(i) Mortgage Receivables shall not exceed, in the aggregate at any time, 20% of the Consolidated Total Asset Value;
(ii) Unimproved Land shall not exceed, in the aggregate at any time, 5% of the Consolidated Total Asset Value;
(iii) Development Property shall not exceed, in the aggregate at any time, 35% of the Consolidated Total Asset Value; and
(iv) Unconsolidated Affiliates and all other Investments not covered by the foregoing clauses (i), (ii), or (iii) or Sections 8.02(a) through (h) shall not exceed, in the aggregate at any time, 10% of the Consolidated Total Asset Value;
provided, further, however, that the Investments permitted under clauses (i) through (iv) of this paragraph (i) above shall not exceed, in the aggregate at any time, 35% of the Consolidated Total Asset Value.
For purposes of this Section 8.02, the value of any Investment in Development Property not yet completed shall be measured as the total cost to develop the real property under construction, including the acquisition of land, as reasonably determined by Borrower in good faith, and not as expenditures to date.
8.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) (i) Indebtedness outstanding on the date hereof and listed on Schedule 8.03 and (ii) any refinancings, refundings, renewals or extensions of such Indebtedness (including subsequent refinancings, refundings, renewals and extensions), provided that no Default would result therefrom.

 

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(c) Guarantees of CSI, Borrower or any Subsidiary in respect of Indebtedness otherwise permitted hereunder of CSI, Borrower or any Subsidiary;
(d) obligations (contingent or otherwise) of CSI or Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view”; and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness of CSI, Borrower or any Subsidiary in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 8.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $10,000,000;
(f) other Recourse Indebtedness of the Borrower or any of its Subsidiaries;
(g) Non-recourse Indebtedness of the Borrower or any of its Subsidiaries (other than Erdman or any Subsidiary thereof); and
(h) intercompany Indebtedness that would constitute an Investment permitted under Section 8.02(c).
8.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) Borrower, provided that Borrower shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person, and, provided, further, that if a Guarantor is merging with another Subsidiary that is not a Guarantor, the Guarantor shall be the surviving Person; and
(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to CSI or to another Subsidiary (other than an Excluded Subsidiary); provided that if the transferor in such a transaction is a wholly-owned Subsidiary, then the transferee must either be CSI, the Borrower or any other wholly-owned Subsidiary and, provided, further, that if the transferor of such assets is a Guarantor, the transferee must be CSI, the Borrower or any other Guarantor.
8.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;

 

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(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to CSI, the Borrower or to a wholly-owned Subsidiary (other than an Excluded Subsidiary unless the Disposing Party is also an Excluded Subsidiary); provided that if the transferor of such property is a Guarantor, the transferee thereof must either be CSI, Borrower or any other Guarantor;
(e) Dispositions permitted by Section 8.04;
(f) Dispositions by CSI and its Subsidiaries of property pursuant to sale-leaseback transactions, provided that the book value of all property so Disposed of shall not exceed $10,000,000 in any fiscal year; and
(g) non-exclusive licenses of intellectual property rights in the ordinary course of business and substantially consistent with past practice for terms not exceeding five years;
(h) subject to Section 8.08, and provided that at the time of such Disposition and after giving effect thereto no Default or Event of Default exists or would result therefrom, any other Disposition;
provided, however, that any Disposition pursuant to clauses (a) through (h) above shall be for fair market value.
8.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom, CSI may declare and make any cash dividends or make any other payment or distribution of cash to its shareholders on account of its capital stock; provided that, beginning with the fiscal quarter period ending March 31, 2012 and for each fiscal quarter period thereafter, the aggregate amount of such distributions for the four fiscal quarter period then ended shall not exceed the greater of (i) the Permitted Distribution Amount and (ii) the aggregate minimum amount required during such period for CSI to qualify as and maintain its qualification as a REIT; provided further, in determining compliance with the preceding proviso, and, in each case, notwithstanding the actual amount of cash dividends and distributions declared and made during any of the following periods: (A) for the fiscal quarter period ending March 31, 2012, the aggregate amount of such dividends and distributions for the four fiscal quarter period then ended shall be deemed to be equal to the product of (x) the sum of (1) Preferred Dividends accrued during and attributable to such fiscal quarter and (2) all other cash dividends and distributions declared during such fiscal quarter, multiplied by (y) 4.0; (B) for the two fiscal quarter period ending June 30, 2012, the aggregate amount of such dividends and distributions for the four fiscal quarter period then ended shall be deemed to be equal to the product of (x) the sum of (1) Preferred Dividends accrued during and attributable to such two fiscal quarters and (2) all other cash dividends and distributions declared during such two fiscal quarters, multiplied by (y) 2.0; and (C) for the three fiscal quarter period ending September 30, 2012, the aggregate amount of such dividends and distributions for the four fiscal quarter period then ended shall be deemed to be equal to the product of (x) the sum of (1) Preferred Dividends accrued during and attributable to such three fiscal quarters and (2) all other cash dividends and distributions declared during such three fiscal quarters, multiplied by (y) 1.33;

 

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(b) so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom, each Subsidiary may make Restricted Payments to Borrower, Guarantors and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(c) so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom, Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests; and
(d) notwithstanding clauses (a) and (b) above, CSI may, during any relevant period, make cash distributions to its shareholders in the minimum amount required during such period for CSI to qualify as and maintain its qualification as a REIT; provided, however, that notwithstanding the foregoing, if (i) an Event of Default under Section 9.01(a), (f) or (g)(1) shall have occurred and be continuing, or (ii) any other Event of Default shall have occurred and as a result thereof the Obligations have been accelerated, CSI shall not make or declare any dividends or other cash distributions.
8.07 Change in Nature of Business. Engage in any material line of business substantially different from those lines of business conducted by CSI and its Subsidiaries on the date hereof or any business substantially related or incidental thereto.
8.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of CSI, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to CSI or such Subsidiary as would be obtainable by CSI or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, provided that the foregoing restriction shall not apply to transactions between or among Borrower and any Guarantor or between and among Guarantors.
8.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to Borrower or any Guarantor or to otherwise transfer property to Borrower or any Guarantor, (ii) of any Subsidiary (other than an Excluded Subsidiary) or CSI to Guarantee the Indebtedness of Borrower, (iii) of the Borrower to prepay or refinance the Obligations hereunder or (iv) of CSI or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; or (b) requires the grant of a Lien to secure an obligation of such Person (other than an Excluded Subsidiary) if a Lien is granted to secure another obligation of such Person.

 

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8.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
8.11 Amendments to Organization Documents. Amend, restate, supplement or otherwise modify the Organization Documents of CSI or any Subsidiary if such amendment, restatement, supplement or modification could reasonably be expected to result in a Material Adverse Effect on (a) the rights and remedies of the Lenders and Agent or (b) the ability of Borrower and the Guarantors to perform their respective obligations under this Agreement and any other Loan Document.
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default. Any of the following shall constitute an Event of Default:
(a) Non-Payment. Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within three days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 7.01, 7.02, 7.03, 7.05 (with respect to any Loan Party), 7.10, 7.11, 7.12 or 7.17 or Article VIII, or any Guarantor fails to perform or observe any term, covenant or agreement contained in any Facility Guaranty; or
(c) Other Defaults. The occurrence of an Event of Default under any Mortgage which is not cured. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any other Loan Document on its part to be performed or observed and such failure continues for 30 days or any default or Event of Default occurs under any other Loan Document; or
(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of CSI, the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

 

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(e) Cross-Default. (i) CSI, Borrower or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect any Recourse Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $25,000,000, (B) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Non-recourse Indebtedness or Guarantee (other than Non-recourse Indebtedness hereunder and Non-recourse Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $50,000,000, or (C) fails to observe or perform any other agreement or condition relating to any such Recourse or Non-recourse Indebtedness or Guarantee having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $25,000,000, or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by Borrower or such Subsidiary as a result thereof is greater than $25,000,000; or (iii) Borrower or any Subsidiary fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in excess of $25,000,000 in the aggregate under any Swap Contract; or
(f) Insolvency Proceedings, Etc. Any Loan Party, or any of its Subsidiaries whose total assets comprises at least $25,000,000 of Consolidated Total Asset Value, institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) CSI, Borrower or any Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or

 

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(h) Judgments. There is entered against CSI, Borrower or any Subsidiary (i) a final judgment or order for the payment of money in an aggregate amount exceeding $25,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 30 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of CSI or Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $25,000,000, or (ii) CSI, Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $25,000,000; or
(j) Invalidity of Loan Documents. Any Loan Document or any provision thereof, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document or any provision thereof; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document or any provision thereof; or
(k) Change of Control. There occurs any Change of Control.
9.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower;
(c) require that Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents;

 

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provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of Agent or any Lender.
9.03 Application of Funds. After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 9.02), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.16 and 2.17, be applied by Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to Agent and amounts payable under Article III) payable to Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or the L/C Issuer), amounts comparable to the foregoing in respect of Secured Cash Management Agreements and Secured Hedge Agreements and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid L/C Fees and interest on the Loans, L/C Borrowings and other Obligations (excluding Secured Cash Management Agreements and Secured Hedge Agreements), ratably among Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings and Obligations arising under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among Lenders, the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them;
Fifth, to Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.16; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to Borrower or as otherwise required by Law.
Subject to Sections 2.03(c) and 2.17, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

 

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Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Agent has not received written notice thereof, together with such supporting documentation as the Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has been given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Agent pursuant to the terms of Article X hereof for itself and its Affiliates as if a “Lender” party hereto.
ARTICLE X.
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent. Each of the Lenders (including in its capacities as a potential Hedge Bank and potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as Agent hereunder and under the other Loan Documents and authorizes Agent to take such actions on its behalf and to exercise such powers as are delegated to Agent by the terms hereof and thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of Agent, the Lenders and the L/C Issuer, and neither Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.
10.02 Rights as a Lender. The Person serving as Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Borrower or any Subsidiary or other Affiliate thereof as if such Person were not Agent hereunder and without any duty to account therefor to Lenders.
10.03 Exculpatory Provisions. Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to any Loan Document or applicable Law; and

 

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(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as Agent or any of its Affiliates in any capacity.
(d) Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 9.02 and 11.01) or (ii) in the absence of its own gross negligence or willful misconduct. Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default is given to Agent by Borrower, a Lender or the L/C Issuer. Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Agent.
10.04 Reliance by Administrative Agent. Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
10.05 Delegation of Duties. Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by Agent. Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub agent and to the Related Parties of Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent.

 

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10.06 Resignation of Agent. Agent may at any time give notice of its resignation to Lenders, the L/C Issuer and Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of Lenders and the L/C Issuer, appoint a successor Agent meeting the qualifications set forth above; provided that if Agent shall notify Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such retiring Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a successor’s appointment as Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
10.07 Non-Reliance on Agent and Other Lenders. Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

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10.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Arrangers, Book Managers, Syndication Agent or Documentation Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
10.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Agent shall have made any demand on Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders, the L/C Issuer and Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Lenders, the L/C Issuer and Agent and their respective agents and counsel and all other amounts due Lenders, the L/C Issuer and Agent under Sections 2.03(i) and (j), 2.09 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to Agent and, in the event that Agent shall consent to the making of such payments directly to Lenders and the L/C Issuer, to pay to Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Agent and its agents and counsel, and any other amounts due Agent under Sections 2.09 and 11.04. Nothing contained herein shall be deemed to authorize Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer or to authorize Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.
10.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize the Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the Agent for the benefit of the Secured Parties under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) subject to Section 11.01, if approved, authorized or ratified in writing by the Required Lenders;

 

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(b) to subordinate any Lien on any property granted to or held by the Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 8.01(i); and
(c) to release any Subsidiary Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder (ii) to release CS Business Trust I or CS Business Trust II, respectively, from its obligations under the Guaranty if (x) such Person ceases to be a Subsidiary of CSI and (y) the Borrower becomes a direct Subsidiary of CSI in a transaction not prohibited by the terms hereof (unless, with respect to this clause (y), such replacement direct owner(s) of Borrower execute a Guaranty Joinder Agreement). Upon request by Agent at any time, each Lender and the L/C Issuer will confirm in writing Agent’s authority to release any Guarantor from its obligations under the Guaranty pursuant to this Section 10.10.
Upon request by the Agent at any time, the Required Lenders will confirm in writing the Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 10.10.
10.11 Secured Cash Management Agreements and Secured Hedging Agreements. No Cash Management Bank or Hedge Bank who obtains the benefit of the provisions of Section 9.03, Article V, the Facility Guaranty or any Collateral by virtue of the provisions hereof or of the Facility Guaranty or any Security Instrument shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article X to the contrary, the Agent shall be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements only if the Agent has received written notice of such Obligations, together with such supporting documentation as the Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.
ARTICLE XI.
MISCELLANEOUS
11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and Borrower or the other applicable Loan Parties, as the case may be, and acknowledged by Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) or Section 11.06(d) without the written consent of each Lender; provided, however, in the sole discretion of Agent, only a waiver by Agent shall be required with respect to immaterial matters or items specified in Section 4.01(a)(iii) or (iv) with respect to which Borrower has given assurances satisfactory to Agent that such items shall be delivered promptly following the Effective Date;

 

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(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 9.02) without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of Borrower to pay interest or L/C Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(e) change Section 2.13 or Section 9.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
(f) change any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
(g) release any Guarantor from any Facility Guaranty except in accordance with the terms of any Loan Document, without the written consent of each Lender; or
(h) release all or substantially all of the collateral in any transaction or series of related transactions except in accordance with the terms of any Loan Document, without the written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by Swing Line Lender in addition to the Lenders required above, affect the rights or duties of Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by Agent in addition to the Lenders required above, affect the rights or duties of Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that, without the consent of such Lender, (i) the Commitment of such Lender may not be increased or extended, (ii) subject to Sections 2.17 and 11.13, the interest rate or fees payable to such Lender may not be reduced, and (iii) subject to Section 2.17 and any others provisions relating to the subordination of principal payments owed to a Defaulting Lender, the principal amounts owed to such Lender may not be reduced.

 

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11.02 Notices; Effectiveness; Electronic Communications.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to Borrower, Agent, the L/C Issuer or Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 11.02; and
(ii) if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable has notified Agent that it is incapable of receiving notices under such Article by electronic communication. Agent or Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

 

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(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH BORROWER MATERIALS OR THE PLATFORM. In no event shall Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower’s or Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of Borrower, Agent, the L/C Issuer and Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to Borrower, Agent, the L/C Issuer and Swing Line Lender. In addition, each Lender agrees to notify Agent from time to time to ensure that Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
(e) Reliance by Agent. L/C Issuer and Lenders. Agent, the L/C Issuer and Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Borrower shall indemnify Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of Borrower. All telephonic notices to and other telephonic communications with Agent may be recorded by Agent, and each of the parties hereto hereby consents to such recording.

 

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11.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
11.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for Agent, any Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys who may be employees of Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by Borrower. Borrower shall indemnify Agent (and any sub-agent thereof), each Arranger, each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, or the consummation of the transactions contemplated hereby or thereby or, in the case of the Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.

 

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(c) Reimbursement by Lenders. To the extent that Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of Agent and the L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

 

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11.05 Payments Set Aside. To the extent that any payment by or on behalf of Borrower is made to Agent, the L/C Issuer or any Lender, or Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
11.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Agent, the L/C Issuer and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans.
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
(B) the consent of the Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to be a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender;
(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and

 

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(D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Agent an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made to the Borrower or any of the Borrower’s Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural person.
(c) Register. Agent, acting solely for this purpose as an agent of Borrower, shall maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and Borrower, Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by each of Borrower and the L/C Issuer, at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents is pending, any Lender may request and receive from Agent a copy of the Register.
Subject to acceptance and recording thereof by the Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.

 

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(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrower, to comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

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(g) Electronic Execution of Assignments. The words “execution”, “signed”, “signature”, and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(h) Deemed Consent of Borrower. If the consent of Borrower to an assignment to an Eligible Assignee is required hereunder (including a consent to an assignment which does not meet the minimum assignment threshold specified in clause (i) of the proviso to the first sentence of Section 11.06(b)), Borrower shall be deemed to have given its consent five Business Days after the date notice thereof has been delivered to Borrower by the assigning Lender (through Agent) unless such consent is expressly refused by Borrower prior to such fifth Business Day.
(i) Resignation as L/C Issuer or Swing Line Lender. Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’ notice to Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, Borrower shall be entitled to appoint from among Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the Effective Date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the Effective Date of such resignation, including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.

 

110


 

11.07 Treatment of Certain Information; Confidentiality. Each of Agent, Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority, purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to Borrower and its obligations, (g) with the consent of CSI or Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than CSI or Borrower. For purposes of this Section, “Information” means all information received from CSI or Borrower or any Subsidiary relating to CSI, Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by CSI, Borrower or any Subsidiary, provided that, in the case of information received from CSI, Borrower or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Each of Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning CSI, Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of Borrower or any other Loan Party against any and all of the obligations of Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or any such Affiliate, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify Borrower and Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. Notwithstanding anything in any Loan Document to the contrary, at any time a property located within the State of California, State of Washington, State of Oregon or any other state with a “one-action” rule is indentified as a Borrowing Base Property hereunder, any set-off in violation of this Section 11.08 shall be deemed invalid and such funds shall be deemed held in constructive trust for the benefit of the Borrower.

 

111


 

11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrower. In determining whether the interest contracted for, charged, or received by Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
11.10 Counterparts; Integration; Effectiveness. This Agreement and the other Loan Documents may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement and the other Loan Documents shall become effective when they shall have been executed by Agent and when Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement or any other Loan Document by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement and the other Loan Documents.
11.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by Agent and each Lender, regardless of any investigation made by Agent or any Lender or on their behalf and notwithstanding that Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

112


 

11.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender, then, in each case, Borrower may, at its sole expense and effort, upon notice to such Lender and Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a) Borrower shall have paid to Agent the assignment fee specified in Section 11.06(b);
(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.
11.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

113


 

(c) WAIVER OF VENUE. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.15 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Agent and the Arrangers, are arm’s-length commercial transactions between the Borrower and each other Loan Party and their respective Affiliates, on the one hand, and the Agent and the Arrangers, on the other hand, (B) each of the Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Agent and the Arrangers each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower, any other Loan Party or any of their respective Affiliates or any other Person and (B) neither the Agent nor any Arranger has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents and (iii) the Agent, the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and neither the Agent nor any Arranger has any obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and the other Loan Parties hereby waives and releases any claims that it may have against the Agent and any Arranger with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

 

114


 

11.17 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow such Lender or Agent, as applicable, to identify Borrower in accordance with the Act.
11.18 Waiver of Appraisal Rights. The laws of South Carolina provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the Property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. THE BORROWER HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE PROPERTY.
[Signature pages follow.]

 

115


 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
                     
    COGDELL SPENCER LP, a Delaware limited partnership    
 
                   
    By:   CS Business Trust I, a Maryland    
        Statutory Trust, its General Partner    
 
                   
 
      By:             
               
 
        Name:  Charles M. Handy    
 
        Title: Chief Financial Officer and Trustee    
 
                   
    COGDELL SPENCER INC., as Guarantor    
 
                   
 
  By:                
             
 
      Name:  Charles M. Handy    
 
      Title: Chief Financial Officer    
COGDELL SPENCER LP
AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page

 

 


 

         
  BANK OF AMERICA, N.A., as Administrative Agent
 
 
  By:      
    Name:   Jack Redhead   
    Title:   Senior Vice President   
 
  BANK OF AMERICA, N.A., as Swing Line
Lender, L/C Issuer and as a Lender
 
 
  By:      
    Name:   Jack Redhead   
    Title:   Senior Vice President   
COGDELL SPENCER LP
AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page

 

 


 

         
  KEYBANK NATIONAL ASSOCIATION
 
 
  By:      
    Name:   Daniel Stegemoeller   
    Title:   Senior Banker   
COGDELL SPENCER LP
AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page

 

 


 

                 
    CITIBANK, N.A.    
 
               
 
  By:            
             
 
      Name:        
 
         
 
   
 
      Title:        
 
         
 
   
COGDELL SPENCER LP
AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page

 

 


 

                 
    BRANCH BANKING AND TRUST COMPANY    
 
               
 
  By:            
             
 
      Name:        
 
         
 
   
 
      Title:  
 
   
COGDELL SPENCER LP
AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page

 

 


 

                 
    WELLS FARGO BANK, N.A.    
 
               
 
  By:            
             
 
      Name:        
 
         
 
   
 
      Title:        
 
         
 
   
COGDELL SPENCER LP
AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page

 

 


 

                 
    REGIONS BANK    
 
               
 
  By:            
             
 
      Name:        
 
         
 
   
 
      Title:        
 
         
 
   
COGDELL SPENCER LP
AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page

 

 


 

                 
    RAYMOND JAMES BANK, FSB    
 
               
 
  By:            
             
 
      Name:        
 
         
 
   
 
      Title:        
 
         
 
   
COGDELL SPENCER LP
AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page

 

 


 

                 
    M&I MARSHALL & ILSLEY BANK    
 
               
 
  By:            
             
 
      Name:        
 
         
 
   
 
      Title:        
 
         
 
   
COGDELL SPENCER LP
AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page

 

 


 

Cogdell Spencer LP
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 1, 2011
SCHEDULES
     
A
  Existing Loans
1.01(a)
  Existing Borrowing Base Properties
1.01(b)
  Existing Eligible Properties
1.01(c)
  Existing Letters of Credit
1.01(d)
  Existing Pledged Properties
2.01
  Commitments and Applicable Percentages
5A.03
  Collateral Information
5A.04(a)
  Appraisal Requirements
5A.04(b)
  Borrowing Base Properties
6.06
  Litigation
6.09
  Environmental Matters
6.13
  Subsidiaries and Other Equity Investments
6.20
  Existing Surveys
7.17
  Post Closing Surveys
8.01
  Existing Liens
8.03
  Existing Indebtedness
11.02
  Administrative Agent’s Office, Certain Addresses for Notices
EXHIBITS
     
Form of    
A
  Committed Loan Notice
B
  Swing Line Loan Notice
C-1
  Note
C-2
  Amended and Restated Note
D
  Available Amount Certificate
E
  Compliance Certificate
F
  Assignment and Assumption
G
  Guaranty
H
  Eligible Property Compliance Certificate
I
  Estoppel Certificate
J-1
  Subordination, Non-Disturbance and Attornment Agreement
J-2
  Reaffirmation and Amendment to Subordination, Non-Disturbance and Attornment Agreement
K
  Opinion of Special Counsel
L-1
  Consent and Agreement Regarding Performance Under Ground Lease
L-2
  Affirmation of, and Amendment to, Landlord’s Consent and Agreement Regarding Performance under Ground Lease
M
  Environmental Indemnity Agreement
N
  Mortgage

 

 


 

SCHEDULE A
EXISTING LOANS
                 
    Applicable        
Lender   Percentage     Amount  
 
               
Bank of America, N.A.
    21.000 %   $ 11,550,000.00  
 
               
KeyBank National Association
    21.000 %     11,550,000.00  
 
               
Branch Banking and Trust Company
    21.000 %     11,550,000.00  
 
               
Wachovia Bank National Association
    21.000 %     11,550,000.00  
 
               
M&I Marshall & Ilsley Bank
    10.000 %     5,500,000.00  
 
               
Citicorp North America, Inc.
    6.000 %     3,300,000.00  
 
             
 
               
Total Existing Loans
          $ 55,000,000.00  
 
             
Schedule A

 

Page 1


 

SCHEDULE 1.01(a)
EXISTING BORROWING BASE PROPERTIES
                 
            Square  
Property   Owner of Property   Footage  
 
               
1
  Augusta POB I   Augusta Medical Partners, LLC     99,494  
2
  Augusta POB II   Augusta Medical Partners, LLC     125,634  
3
  Augusta POB III   Augusta Medical Partners, LLC     47,034  
4
  Augusta POB IV   Augusta Medical Partners, LLC     55,134  
5
  Birkdale Retail II   Cogdell Investors (Birkdale II), LP     8,269  
6
  East Rocky Mount Kidney Center   East Rocky Mount Kidney Center Associates, LP     8,043  
7
  Mallard Crossing Medical Park   Cogdell Investors (Mallard), LP     52,540  
8
  Mt. Pleasant MOB   Medical Investors III, LP     38,735  
9
  Franciscan Dev ASC and MOB and Parking   Franciscan Development Company, LLC     46,907  
10
  West Medical I   West Medical Office I, LP     28,734  
11
  200 Andrews   200 Andrews, LLC     25,902  
12
  Mary Black Westside   Mary Black Westside Medical Park I Limited Partnership     37,455  
13
  Carolina Forest Medical Plaza   Carolina Forest Plaza, LLC     38,902  
14
  Birkdale Medical Village   Cogdell Investors (Birkdale), LP     64,669  
15
  Gaston Professional Center   Gaston MOB, LP     103,787  
16
  Verdugo Professional Bldg 1   Verdugo MOB, LP     63,887  
17
  Verdugo Professional Bldg 2   Verdugo MOB, LP     42,697  
 
             
 
               
 
      Total     887,823  
 
             
Schedule 1.01(a)

 

Page 1


 

SCHEDULE 1.01(b)
EXISTING ELIGIBLE PROPERTIES
                 
            Square  
Property   Owner of Property   Footage  
 
               
1
  Augusta POB I   Augusta Medical Partners, LLC     99,494  
2
  Augusta POB II   Augusta Medical Partners, LLC     125,634  
3
  Augusta POB III   Augusta Medical Partners, LLC     47,034  
4
  Augusta POB IV   Augusta Medical Partners, LLC     55,134  
5
  Birkdale Retail II   Cogdell Investors (Birkdale II), LP     8,269  
6
  Copperfield MOB   Copperfield MOB, LP     61,789  
7
  East Rocky Mount Kidney Center   East Rocky Mount Kidney Center Associates, LP     8,043  
8
  Mallard Crossing Medical Park   Cogdell Investors (Mallard), LP     52,540  
9
  Mt. Pleasant MOB   Medical Investors III, LP     38,735  
10
  Franciscan Dev ASC, MOB and Parking Deck   Franciscan Development Company, LLC     46,907  
11
  West Medical I   West Medical Office I, LP     28,734  
12
  Cabarrus POB   Cabarrus POB, LP     84,972  
13
  200 Andrews   200 Andrews, LLC     25,902  
14
  Mary Black Westside   Mary Black Westside Medical Park I Limited Partnership     37,455  
15
  Carolina Forest Medical Plaza   Carolina Forest Plaza, LLC     38,902  
16
  Birkdale Medical Village   Cogdell Investors (Birkdale), LP     64,669  
17
  Gaston Professional Center, ASC and Parking Deck   Gaston MOB, LP     103,787  
18
  Verdugo Professional Bldg 1   Verdugo MOB, LP     63,887  
19
  Verdugo Professional Bldg 2   Verdugo MOB, LP     42,697  
 
             
 
               
 
      Total     1,034,584  
 
             
Schedule 1.01(b)

 

Page 1


 

SCHEDULE 1.01(c)
EXISTING LETTERS OF CREDIT
                         
Applicant   LC ID #     For Account Of   Beneficiary   Amount  
Cogdell Spencer LP
    3088800     Syracuse MOB, LLC   Keybank National
Association
  $ 486,000.00  
 
                       
Cogdell Spencer LP
    3092388     Erdman Company (f/k/a Marshall Erdman and Associates)   Arch Insurance
Company (Pennsylvania)
    6,500,000.00  
 
                       
Cogdell Spencer LP
    3093006     Erdman Company (f/k/a Marshall Erdman and Associates)   Arch Insurance
Company (New York)
    700,000.00  
 
                       
Cogdell Spencer LP
    3095852     MEA Holdings, Inc. d/b/a Erdman Company   The Travelers Indemnity
Company
    42,000.00  
 
                       
Cogdell Spencer LP
    3100397     MEA Holdings, Inc.   Hartford Fire Insurance Company     399,808.00  
 
                     
 
                       
Total Existing Letters of Credit           $ 8,127,808.00  
 
                     
Schedule 1.01(c)

 

Page 1


 

SCHEDULE 1.01(d)
EXISTING PLEDGED PROPERTIES
                 
            Square  
Property   Owner of Property   Footage  
 
1
  Augusta POB I   Augusta Medical Partners, LLC     99,494  
2
  Augusta POB II   Augusta Medical Partners, LLC     125,634  
3
  Augusta POB III   Augusta Medical Partners, LLC     47,034  
4
  Augusta POB IV   Augusta Medical Partners, LLC     55,134  
5
  Birkdale Retail II   Cogdell Investors (Birkdale II), LP     8,269  
6
  Copperfield MOB   Copperfield MOB, LP     61,789  
7
  East Rocky Mount Kidney Center   East Rocky Mount Kidney Center Associates, LP     8,043  
8
  Mallard Crossing Medical Park   Cogdell Investors (Mallard), LP     52,540  
9
  Mt. Pleasant MOB   Medical Investors III, LP     38,735  
10
  Franciscan Dev ASC, MOB and Parking Deck   Franciscan Development Company, LLC     46,907  
11
  West Medical I   West Medical Office I, LP     28,734  
12
  Cabarrus POB   Cabarrus POB, LP     84,972  
13
  200 Andrews   200 Andrews, LLC     25,902  
14
  Mary Black Westside   Mary Black Westside Medical Park I Limited Partnership     37,455  
15
  Carolina Forest Medical Plaza   Carolina Forest Plaza, LLC     38,902  
16
  Birkdale Medical Village   Cogdell Investors (Birkdale), LP     64,669  
17
  Gaston Professional Center, ASC and Parking Deck   Gaston MOB, LP     103,787  
18
  Verdugo Professional Bldg 1   Verdugo MOB, LP     63,887  
19
  Verdugo Professional Bldg 2   Verdugo MOB, LP     42,697  
 
             
 
       
 
      Total     1,034,584  
 
             
Schedule 1.01(d)

 

Page 1


 

SCHEDULE 2.01
COMMITMENTS AND APPLICABLE PERCENTAGES
                 
            Applicable  
Lender   Commitment     Percentage  
Bank of America, N.A.
  $ 35,000,000.00       17.500000000 %
KeyBank National Association
  $ 35,000,000.00       17.500000000 %
Citibank, N.A.
  $ 30,000,000.00       15.000000000 %
Branch Banking and Trust Company
  $ 30,000,000.00       15.000000000 %
Wells Fargo Bank, N.A.
  $ 30,000,000.00       15.000000000 %
Regions Bank
  $ 20,000,000.00       10.000000000 %
Raymond James Bank, FSB
  $ 10,000,000.00       5.000000000 %
M&I Marshall & Ilsley Bank
  $ 10,000,000.00       5.000000000 %
 
           
Total
  $ 200,000,000.00       100.000000000 %
 
           
Schedule 2.01

 

Page 1


 

SCHEDULE 5A.03
COLLATERAL INFORMATION
             
Legal Name   Physical Address   CEO/Contact Address   Tax ID #
Cogdell Spencer LP
(Borrower)
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  20-3648261
200 Andrews, LLC
  200 Andrews Street
Greenville, SC 29601
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-2542172
Augusta Medical Partners, LLC
  820 Sebastian Way
Augusta, GA 30901
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-2033434
Cabarrus POB, LP
  200 Medical Park Drive
Concord, NC 28025
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-1949382
Carolina Forest Plaza, LLC
  199 Village Center Blvd.
Myrtle Beach, SC 29579
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  75-3200838
Cogdell Investors (Birkdale), LLC
  16639 Birkdale Commons Parkway
Huntersville, NC 28078
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-1998314
Cogdell Investors (Birkdale II), LLC
  16639 Birkdale Commons Parkway
Huntersville, NC 28078
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-2160958
Cogdell Investors (Mallard), LP
  10320 Mallard Creek Rd.
Charlotte, NC 28262
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-2262868
Copperfield MOB, LP
  1085 NorthEast Gateway Court
Concord, NC 28025
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  30-0200695
East Rocky Mount Kidney Center Associates, LP
  230 S. Fairview Rd.
Rocky Mount, NC 27801
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-2149090
Franciscan Development Company, LLC
  1101 St. Christopher Drive
Ashland, KY 41101
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-2055471
Schedule 5A.03

 

Page 1


 

             
Legal Name   Physical Address   CEO/Contact Address   Tax ID #
Gaston MOB, LP
  2555 Court Drive
Gastonia, NC 28054
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-1952401
Mary Black Westside Medical Park I, LP
  2995 Reidville Rd.
Spartanburg, SC 29301
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-1676235
Medical Investors III, LP
  570 Long Point Rd.
Charleston County, SC 29464
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  56-2183908
West Medical Office I, LLC
  2145 Henry Tecklenburg Drive
Charleston, SC 29414
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  71-0911616
Verdugo MOB, LP
  1808 Verdugo Blvd.
Glendale, CA 91208
  4401 Barclay Downs Drive, Suite 300
Charlotte, NC 28209
  71-1000713
Schedule 5A.03

 

Page 2


 

SCHEDULE 5A.04(a)
APPRAISAL REQUIREMENTS
Amended and Restated Credit Agreement among Cogdell Spencer LP (“Borrower”),
Bank of America, N.A., as Administrative Agent (“
Agent”), and
the Lenders party thereto (“
Credit Agreement”)
The following is a statement of the appraisal requirements relating to any Property which becomes an Eligible Property and is included in the Borrowing Base. Capitalized terms used herein shall have the meaning set forth in the Credit Agreement except that the following terms shall have the following meanings:
Appraisal” means a report made by a Qualified Appraiser setting forth such Qualified Appraiser’s opinion as to the current market value (based upon modelings of the “income approach”, the “sales approach” and the “cost approach” unless otherwise acceptable to the Agent) of a Property and in form and content reasonably acceptable to the Agent;
Validation” means a report by a Qualified Appraiser extending an original Appraisal prepared by such Qualified Appraiser of an Eligible Property which validation meets the following conditions: (i) the appraiser continues to be acceptable to the Agent, (ii) the Property has not undergone a significant change since the original Appraisal, and (iii) the original Appraisal is dated within three (3) years of the date of the Validation. A Validation shall contain an opinion as to the current validity of the prior estimate of market value for the subject property. If the Validation concludes that the prior value conclusion is not significantly different from that set forth in the original report, then a new appraisal is not necessary. If the Validation concludes that the prior value is significantly different from that set forth in the original report, then a new appraisal is necessary.
In order for a Property to become an Eligible Property the Appraisal furnished to the Agent must meet the following requirements:
1. The Appraisal must be dated not more than six months prior to the date of delivery to the Agent; or
2. If the Appraisal is dated earlier than six months prior to the date of delivery to the Agent such Appraisal shall be accompanied by a Validation dated within thirty (30) days of delivery to the Agent which Validation shall state that the then fair market value of the Property is not significantly different from that set forth in the original Appraisal.
Schedule 5A.04(a)

 

Page 1


 

The Agent shall have the right to request (at the Borrower’s expense and subject to satisfactory review and approval of the Agent) a new Appraisal with respect to each Borrowing Base Property once during the initial term of the Agreement; provided, however, that a new Appraisal may not be ordered during the six month period immediately preceding the initial Maturity Date under the Agreement and provided, further, that at any time during the existence and continuance of an Event of Default, a new Appraisal with respect to each Borrowing Base Property may be requested by the Agent notwithstanding any previous new Appraisal previously having been obtained with respect to such Property. In addition to the foregoing, if the Borrower has requested an extension of the Maturity Date pursuant to Section 2.15, the Agent shall have the right to request new Appraisals which meet the Appraisal Requirements.
The Borrower may request that the Agent initiate a new Appraisal with respect to any Borrowing Base Property at any time.
All such Appraisals shall be engaged by the Agent (at the expense of the Borrower) and subject to satisfactory review and approval of the Agent.
Schedule 5A.04(a)

 

Page 2


 

SCHEDULE 5A.04(b)
BORROWING BASE PROPERTIES
                 
            Square  
Property   Owner of Property   Footage  
1
  Augusta POB I   Augusta Medical Partners, LLC     99,494  
2
  Augusta POB II   Augusta Medical Partners, LLC     125,634  
3
  Augusta POB III   Augusta Medical Partners, LLC     47,034  
4
  Augusta POB IV   Augusta Medical Partners, LLC     55,134  
5
  Birkdale Retail II   Cogdell Investors (Birkdale II), LP     8,269  
6
  East Rocky Mount Kidney Center   East Rocky Mount Kidney Center Associates, LP     8,043  
7
  Mallard Crossing Medical Park   Cogdell Investors (Mallard), LP     52,540  
8
  Mt. Pleasant MOB   Medical Investors III, LP     38,735  
9
  Franciscan Dev ASC and MOB and Parking   Franciscan Development Company, LLC     46,907  
10
  West Medical I   West Medical Office I, LP     28,734  
11
  200 Andrews   200 Andrews, LLC     25,902  
12
  Mary Black Westside   Mary Black Westside Medical Park I Limited Partnership     37,455  
13
  Carolina Forest Medical Plaza   Carolina Forest Plaza, LLC     38,902  
14
  Birkdale Medical Village   Cogdell Investors (Birkdale), LP     64,669  
15
  Gaston Professional Center   Gaston MOB, LP     103,787  
16
  Verdugo Professional Bldg 1   Verdugo MOB, LP     63,887  
17
  Verdugo Professional Bldg 2   Verdugo MOB, LP     42,697  
 
             
 
               
 
      Total     887,823  
 
             
Schedule 5A.04(b)

 

Page 1


 

SCHEDULE 6.06
LITIGATION
None.
Schedule 6.06

 

Page 1


 

SCHEDULE 6.09
ENVIRONMENTAL MATTERS
None.
Schedule 6.09

 

Page 1


 

SCHEDULE 6.13
SUBSIDIARIES AND OTHER
EQUITY SCHEDULE INVESTMENTS
Part (a). Subsidiaries.
Please see attached.
Part (b). Other Equity Investments.
All entities listed in Schedule 6.13, Part (a), above.
Part (c). Excluded Subsidiaries.
Anchor Cogdell, LLC
Baptist Northwest LP
Barclay Downs Associates, LP
Beaufort Medical Plaza, LLC
Bonney Lake MOB Investors, LLC
Brandon MOB Investors, LLC
Brunswick MOB, LLC
BSB Health/MOB Limited Partnership No. 2
Cabarrus Medical Partners, LP
Cogdell Duluth MOB, LLC
Cogdell Health Campus MOB, LP
Cogdell Investors (OSS), LLC
Cogdell Spencer Medical Partners, LLC
Cogdell Lancaster Rehab, LP
Cogdell Riverside Investors, LP
EA-BSB 2, L.L.C.
EA-BSD 1, L.L.C.
East Jefferson Medical Office Building LP
East Jefferson Medical Plaza, LLC
Genesis Property Holding, LLC
Good Sam MOB Investors, LLC
Hanover MOB, LLC
Healthpark MOB, LLC
HMOB Associates LP
Indianapolis MOB, LLC
Madison MOB Investors, LLC
McLeod Medical Partners, LLC
Mebane Medical Investors, LLC
Medical Investors I, LP
Medical Park Three LP
Schedule 6.13

 

Page 1


 

Mulberry Medical Park LP
Orangeburg Medical Office Building
Parkridge MOB, LLC
Peerless MOB, LLC
PMOB, LLC
River Hills Medical Associates, LLC
Rocky Mount Kidney Center Associates
Rocky Mount Medical Park LP
Rocky Mount MOB, LLC
Roper MOB, LLC
Rowan OSC Investors, LP
Shannon Health/MOB Limited Partnership No. 1
St. Francis Community MOB, LLC
St. Francis Medical Plaza, LLC
St. Cloud MOB, LLC
Syracuse MOB, LLC
Syracuse MOB SPE, LLC
Verdugo Management, LLC
West Tennessee Investors, LLC
Schedule 6.13

 

Page 2


 

SCHEDULE 6.13
SUBSIDIARIES
AND OTHER EQUITY INVESTMENTS
Part (a). Subsidiaries.
                 
Name   Jurisdiction   Owner(s)   Ownership %  
200 Andrews, LLC
  South Carolina   Cogdell Spencer LP     99.0000  
 
      Cogdell Spencer Advisors Management, LLC     1.0000  
Anchor Cogdell, LLC
  Delaware   Cogdell Spencer LP     94.0000  
 
      Cogdell Spencer Advisors Management, LLC     1.0000  
 
      Third Parties     5.0000  
Anchor Cogdell Florence, LLC
  Kentucky   Anchor Cogdell, LC     100.0000  
Augusta Medical Partners, LLC
  Georgia   Cogdell Spencer LP     99.4000  
 
      Cogdell Spencer Advisors Management, LLC     0.6000  
Baptist Northwest, LP
  South Carolina   Cogdell Spencer LP     95.0000  
 
      Cogdell Spencer Advisors Management, LLC     5.0000  
Barclay Downs Associates, LP
  North Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Beaufort Medical Plaza, LLC
  South Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Bonney Lake MOB Investors LLC
  Washington   Cogdell Spencer LP     60.70000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
 
      Third Parties     38.30000  
Brandon MOB, LLC
  Mississippi   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Brunswick MOB, LLC
  Georgia   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
BSG Erdman, LLC
  Wisconsin   Cogdell Spencer LP     99.00000  
(Holds land for potential future plant site)
      Cogdell Spencer Advisors Management, LLC     1.00000  
BSB Health/MOB Limited Partnership No. 2
  Delaware   Consera Healthcare Real Estate, LLC     2.00000  
 
      Third Parties     98.00000  
Cabarrus Medical Partners, LP
  North Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Cabarrus POB, LP
  North Carolina   Cogdell Spencer LP     99.50000  
 
      Cogdell Spencer Advisors Management, LLC     0.50000  
Schedule 6.13

 

Page 3


 

                 
Name   Jurisdiction   Owner(s)   Ownership %  
Harrisburg Medical Clinic, LP
  North Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Healthpark MOB, LLC
  Tennessee   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
HMOB Associates LP
  South Carolina   Cogdell Spencer LP     86.02100  
 
      Cogdell Spencer Advisors Management, LLC     13.97900  
Indianapolis MOB, LLC
  Indiana   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
JHL Associates, LLC
  South Carolina   Cogdell Spencer LP     100.00000  
Lexington MOB, LLC
  South Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Madison MOB Investors, LLC
  Mississippi   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Marshall Erdman Development LLC
  Wisconsin   MEA Holdings, Inc.     100.00000  
Mary Black Westside Medical Park I LP
  South Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
McLeod Medical Partners, LLC
  South Carolina   Cogdell Spencer LP     0.65160  
 
      Cogdell Spencer Advisors Management, LLC     0.50760  
 
      Third Parties     98.84080  
MEA Holdings, Inc.
  Wisconsin   Cogdell Spencer TRS Holdings LLC     1.00000  
Mebane Medical Investors, LLC
  North Carolina   Cogdell Spencer LP     41.50000  
 
      Cogdell Spencer Advisors Management, LLC     7.50000  
 
      Third Parties     51.00000  
Medical Investors I, LP
  North Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Medical Investors III, LP
  South Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Medical Park Three LP
  South Carolina   Cogdell Spencer LP     93.28000  
 
      Cogdell Spencer Advisors Management, LLC     6.72000  
Mulberry Medical Park LP
  North Carolina   Cogdell Spencer LP     96.50000  
 
      Cogdell Spencer Advisors Management, LLC     3.50000  
Schedule 6.13

 

Page 4


 

                 
Name   Jurisdiction   Owner(s)   Ownership %  
Orangeburg Medical Office Building
  South Carolina   Cogdell Spencer LP     99.31000  
 
      Cogdell Spencer Advisors Management, LLC     0.69000  
Parkridge MOB, LLC
  South Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Peerless MOB, LLC
  Tennessee   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
PMOB, LLC
  South Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
River Hills Medical Associates, LLC
  South Carolina   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Rocky Mount Kidney Center Associates
  North Carolina   Cogdell Spencer LP     96.00000  
 
      Cogdell Spencer Advisors Management, LLC     4.00000  
Rocky Mount Medical Park LP
  North Carolina   Cogdell Spencer LP     95.00000  
 
      Cogdell Spencer Advisors Management, LLC     5.00000  
Rocky Mount MOB, LLC
  North Carolina   Cogdell Spencer LP     33.45100  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
 
      Third Parties     65.54900  
Roper MOB, LLC
  South Carolina   Cogdell Spencer LP     99.99000  
 
      Cogdell Spencer Advisors Management, LLC     0.01000  
Rowan OSC Investors, LP
  North Carolina   Cogdell Spencer LP     99.99500  
 
      Cogdell Spencer Advisors Management, LLC     0.00500  
Shannon Health/MOB Limited Partnership No. 1
  Delaware   Consera Healthcare Real Estate, LLC     2.00000  
 
      Third Parties     98.00000  
St. Cloud MOB, LLC
  Minnesota   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
St. Francis Community MOB, LLC
  South Carolina   Cogdell Spencer LP     99.90000  
 
      Cogdell Spencer Advisors Management, LLC     0.10000  
St. Francis Medical Plaza, LLC
  South Carolina   Cogdell Spencer LP     99.99000  
 
      Cogdell Spencer Advisors Management, LLC     0.01000  
Schedule 6.13

 

Page 5


 

                 
Name   Jurisdiction   Owner(s)   Ownership %  
St. Mary’s Investors, LLC
  Virginia   Cogdell Spencer LP     99.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
Syracuse MOB, LLC
  New York   Cogdell Spencer LP     98.00000  
 
      Cogdell Spencer Advisors Management, LLC     1.00000  
 
      Syracuse MOB SPE, LLC     1.00000  
Syracuse MOB SPE, LLC
  Delaware   Cogdell Spencer LP     100.00000  
Verdugo Management, LLC
  California   Cogdell Spencer LP     100.00000  
Verdugo MOB, LP
  California   Cogdell Spencer LP     99.00000  
 
      Verdugo Management, LLC     1.00000  
West Medical Office I, LP
  South Carolina   Cogdell Spencer LP     99.93900  
 
      Cogdell Spencer Advisors     0.06100  
West Tennessee Investors, LLC
  Tennessee   Cogdell Spencer LP     99.00000  
(Future JV)
      Cogdell Spencer Advisors Management, LLC     1.00000  
Schedule 6.13

 

Page 6


 

SCHEDULE 6.20
EXISTING SURVEYS
         
Owner   Date of Survey   Address
Verdugo MOB, LP
  12/30/05   1808 & 1818 Verdugo
 
      Boulevard, Glendale, CA
Cogdell Investors (Birkdale), LP
  05/29/09   16623, 16627, 16633 & 16645
 
      Birkdale Commons Parkway
 
      Huntersville, NC
Cogdell Investors (Birkdale II), LP
  09/07/01   16639 Birkdale Commons
 
      Parkway, Huntersville, NC
Cogdell Investors (Mallard), LP
  01/29/98   10310 & 10320 Mallard Creek
 
      Charlotte, NC
Copperfield MOB, LP
  02/25/04   1085 N.E. Gateway Court, N.E.
 
      Concord, NC
Mary Black Westside Medical Park I
  08/02/06   2995 Reidville Road
Limited Partnership
      Spartanburg, SC
Carolina Forest Plaza, LLC
  10/29/07   199 Village Center Boulevard
 
      Myrtle Beach, SC
Schedule 6.20

 

Page 1


 

SCHEDULE 7.17
POST CLOSING SURVEYS
                 
Owner   Estate   County   State   Address
Augusta Medical Partners, LLC
  Fee   Richmond   GA   820 St. Sebastian Way
 
              818 St. Sebastian Way
 
              811 12th Street, and
 
              1303 D’Antignac Street,
 
              Augusta, GA
Franciscan Development
  Ground Lease   Greenup   KY   1101 St. Christopher Drive and
Company, LLC
              1102 St. Christopher Drive,
 
              Ashland, KY
Gaston MOB, LP
  Space Lease   Gaston   NC   2555 Court Drive,
 
              Gastonia, NC
Schedule 7.17

 

Page 1


 

SCHEDULE 8.01
EXISTING LIENS
1) UCC Financing Statements
                     
        State and            
Debtor   Secured Party   County   File Number   File Date   Description
Baptist Northwest LP
(Baptist Northwest Medical Park)
  Woodman of the World (Servicer)   Lexington County SC   2001004528, as continued by 2006005365   1/30/01   Equipment, accounts, fixtures and general intangibles
Barclay Downs Associates, LP
  NCBT, NA   NC   20090092158H   12/9/09   Equipment, accounts, fixtures and general intangibles
Bonney Lake MOB Investors LLC
  Bank of the West   WA   201021661915   8/2/10   Equipment, accounts, fixtures and general intangibles
Bonney Lake MOB Investors LLC
  Bank of the West   Pierce County, WA   201007300587   7/30/10   DEED OF TRUST
Brandon MOB Investors, LLC
  BankCorpSouth   MS   20090088250F   5/11/09   Equipment, accounts, fixtures and general intangibles
Brunswick MOB, LLC
  Principal Commercial Funding, LLC   GA   63-2007-1881, as assigned by 63-2008-1566 and 63-2008-1734   3/11/08   Equipment, accounts, fixtures and general intangibles
Brunswick MOB, LLC
  Principal Commercial Funding, LLC   Glynn County, GA   Book 2294, Page 224, as assigned by Book 2403, Page 136 and Book 2473, Page 231   8/20/07   Equipment, accounts, fixtures and general intangibles
Cogdell Investors (OSS), LP
  Regions Bank   NC   20100092383K   11/30/10   Equipment, accounts, fixtures and general intangibles
Cogdell Investors (OSS), LP
  Regions Bank   Greenville County, NC   F1 2010-1616   11/29/10   Equipment, accounts, fixtures and general intangibles
Cogdell Lancaster Rehab, LP
  Manufacturers and Traders Trust Co.   PA   2009122905322   12/28/09   Equipment, accounts, fixtures and general intangibles
Cabarrus Medical Partners, LP (Cabarrus Pediatrics, Copperfield Medical Mall, Harrisburg Medical Mall, Midland Medical Mall and Weddington Internal & Pediatric Medicine)
  First Citizens   NC   20040119075M   12/10/04   Equipment, accounts, fixtures and general intangibles
Schedule 8.01

 

Page 1


 

                     
        State and            
Debtor   Secured Party   County   File Number   File Date   Description
Cabarrus Medical Partners, LP (Cabarrus Pediatrics, Copperfield Medical Mall, Harrisburg Medical Mall, Midland Medical Mall and Weddington Internal & Pediatric Medicine)
  First Citizens   Cabarrus County NC   Book 5697, Page 140   12/10/04   Equipment, accounts, fixtures and general intangibles
Cogdell Investors (Birkdale), LLC (Birkdale Medical Village)
  Bank of America (Servicer)   NC   19980065772, as assigned by 20000099474, as continued and amended by 200308442008   9/15/98   Equipment, accounts, fixtures and general intangibles
Cogdell Investors (Birkdale), LLC (Birkdale Medical Village)
  Bank of America (Servicer)   Mecklenburg County NC   98-12923, as assigned by 283770, as continued by Book 16101, Page 934   9/14/98   Equipment, accounts, fixtures and general intangibles
East Jefferson Medical Office Building Limited Partnership
  CW Capital LLC   LA   26282546, as assigned by 26285833, as continued by 26305990   7/20/04   Equipment, accounts, fixtures and general intangibles
East Jefferson Medical Office Building Limited Partnership
  CW Capital LLC   LA   26282547, as assigned by 26305991, as continued by 26305992   7/20/04   Equipment, accounts, fixtures and general intangibles
East Jefferson Medical Office Building Limited Partnership
  CW Capital, LLC   LA   26316642   1/31/11   Equipment, accounts, fixtures and general intangibles
East Jefferson Medical Office Building Limited Partnership
  CW Capital, LLC   LA   26316643   1/31/11   Equipment, accounts, fixtures and general intangibles
East Jefferson Medical Plaza, LLC
  Bank of America, N.A.   LA   26305149   12/23/08   Equipment, accounts, fixtures and general intangibles
Genesis Property Holding, LLC
  Compass Bank   FL   200809298617   10/6/08   Equipment, accounts, fixtures and general intangibles
Genesis Property Holding, LLC
  Compass Bank   Escambia County, FL   Book 6382, Page 1043   10/2/08   Equipment, accounts, fixtures and general intangibles
Good Sam MOB Investors, LLC
  First-Citizens Bank & Trust Company   WA   201017666931   6/25/10   Equipment, accounts, fixtures and general intangibles
Good Sam MOB Investors, LLC
  First Citizens Bank & Trust Company   Pierce County, WA   201006220449   6/22/10   DEED OF TRUST
Schedule 8.01

 

Page 2


 

                     
        State and            
Debtor   Secured Party   County   File Number   File Date   Description
Hanover MOB, LLC
  Aviva Life and Annuity Company   VA   0910307103-7   10/30/09   Equipment, accounts, fixtures and general intangibles
Hanover MOB, LLC
  Aviva Life and Annuity Company   Hanover County, VA   09-0049   10/29/09   Equipment, accounts, fixtures and general intangibles
Health Park MOB, LLC
  Aviva Life and Annuity Company   TN   209055826   11/10/09   Equipment, accounts, fixtures and general intangibles
Health Park MOB, LLC
  Aviva Life and Annuity Company   Hamilton County, TN   Book G19053, Page 355   11/9/09   Equipment, accounts, fixtures and general intangibles
HMOB Associates, LP
(One Medical Park)
  Woodman of the World (Servicer)   SC   031022-1539343   10/22/03   Equipment, accounts, fixtures and general intangibles
HMOB Associates, LP
(One Medical Park)
  Woodman of the World (Servicer)   Richland County SC   Book 00866-1306   10/22/03   Equipment, accounts, fixtures and general intangibles
Indianapolis MOB, LLC
(Methodist Professional Center)
  Bank of America, N.A.   IN   200600010294529   11/1/06   Equipment, accounts, fixtures and general intangibles
Indianapolis MOB, LLC
(Methodist Professional Center)
  Bank of America, N.A.   Marion County IN   002734   11/2/06   Equipment, accounts, fixtures and general intangibles
Medical Investors I, LP
  Wachovia Bank NA   Mecklenburg County NC   Book 23476, Page 185   3/7/08   Equipment, accounts, fixtures and general intangibles
Medical Park Three Limited Partnership
(Three Medical Park)
  Wachovia Securities (Servicer)   SC   040325-1419309, as assigned by 060406-1357155   3/25/04   Equipment, accounts, fixtures and general intangibles
Medical Park Three Limited Partnership
(Three Medical Park)
  Wachovia Securities (Servicer)   Richland County SC   Book 00916-0397, as assigned by Book 1173, Page 1882   3/25/04   Equipment, accounts, fixtures and general intangibles
Mulberry Medical Park LP
(Mulberry Medical Park)
  First Citizens   NC   19990101039, as continued by 20040077971J   12/29/99   Equipment, accounts, fixtures and general intangibles
Parkridge MOB, LLC
(Parkridge Medical Office Building)
  Principal Commercial Funding, LLC   SC   070521-1034032   5/21/07   Equipment, accounts, fixtures and general intangibles
Schedule 8.01

 

Page 3


 

                     
        State and            
Debtor   Secured Party   County   File Number   File Date   Description
Parkridge MOB, LLC
(Parkridge Medical Office Building)
  Principal Commercial Funding, LLC   Richland County SC   Book 1314, Page 2694   5/17/07   Equipment, accounts, fixtures and general intangibles
Peerless MOB, LLC
(Peerless Crossing Medical Center)
  SunTrust Bank   TN   306152830, as amended by 308-014733   2/20/08 (amendment)   Equipment, accounts, fixtures and general intangibles
Peerless MOB, LLC
(Peerless Crossing Medical Center)
  SunTrust Bank   Bradley County TN   Book 1673, Page 70, as amended by Book 1804, Page 98   12/28/07 (amendment)   Equipment, accounts, fixtures and general intangibles
PMOB, LLC
(Providence MOB I, II and III)
  Laureate Capital (Servicer)   Richland County SC   Book 00738, Page 0015, as continued by Book 1327, Page 446   12/19/02   Equipment, accounts, fixtures and general intangibles
River Hills Medical Associates, LLC
(River Hills Medical Plaza)
  Bank of America   SC   060614-0844393   6/14/06   Equipment, accounts, fixtures and general intangibles
River Hills Medical Associates, LLC
(River Hills Medical Plaza)
  Bank of America   Horry County SC   98-018795, as continued by Book 4539, Page 480, as amended by Book 4539, Page 486   12/4/98   Equipment, accounts, fixtures and general intangibles
River Hills Medical Associates, LLC
(River Hills Medical Plaza)
  Bank of America   Horry County SC   Book 4594, Page 1016   6/28/06   Equipment, accounts, fixtures and general intangibles
Rocky Mount Medical Park
Limited Partnership
  Regions Bank   NC   20100083942M   10/26/10   Equipment, accounts, fixtures and general intangibles
Rocky Mount Medical Park Limited Partnership
  Regions Bank   Nash County, NC   Book 2534, Page 727   10/25/10   Equipment, accounts, fixtures and general intangibles
Roper MOB, LLC
  American Investors Life Insurance Company, Inc.   SC   090515-1201302   5/15/09   Equipment, accounts, fixtures and general intangibles
Roper MOB, LLC
  American Investors Life Insurance Company, Inc.   Charleston County, SC   2009-10059   5/14/09   Equipment, accounts, fixtures and general intangibles
Rowan OSC Investors, LP
(Rowan Outpatient Surgery Center)
  Farmers & Merchants Bank   NC   20040068562E, as amended by 20050105456K, as further amended by 20060048645G   7/08/04   Equipment, accounts, fixtures and general intangibles
Rowan OSC Investors, LP
(Rowan Outpatient Surgery Center)
  Farmers & Merchants Bank   Rowan County NC   Book 1012, Page 170, as amended by Book 1050, Page 110, and further amended by Book 1065, Page 547   7/8/04   Equipment, accounts, fixtures and general intangibles
Schedule 8.01

 

Page 4


 

                     
        State and            
Debtor   Secured Party   County   File Number   File Date   Description
St. Cloud MOB, LLC
  Associated Bank, N.A.   MN   200916236033   5/28/09   Equipment, accounts, fixtures and general intangibles
St. Francis Community MOB, LLC
(St. Francis Community Medical Office Building/St. Francis MOB)
  Wachovia Bank NA   SC   000814-104949A, as amended by 050429-1010142, as continued by 050502-1040091   8/10/00   Equipment, accounts, fixtures and general intangibles
St. Francis Community MOB, LLC
(St. Francis Community Medical Office Building/St. Francis MOB)
  Wachovia Bank NA   SC   00814-105015A, as amended by 050429-1010471, as continued by 050502-1038406   8/10/00   Equipment, accounts, fixtures and general intangibles
St. Francis Medical Plaza, LLC
(St. Francis Medical Plaza/St. Francis Women’s Center)
  Wachovia Bank NA   Greenville County SC   Book 1997, Page 3581, as continued by Book 2002, Page 199, as continued by Book 2007, Page 1087   9/24/97   Equipment, accounts, fixtures and general intangibles
St. Francis Medical Plaza, LLC
(St. Francis Medical Plaza/St. Francis Women’s Center)
  Wachovia Bank NA   Greenville County SC   Book 1997, Page 3583, as continued by Book 2002, Page 214, as continued by Book 2007, Page 968   9/24/97   Equipment, accounts, fixtures and general intangibles
Syracuse MOB, LLC
(Central NY Medical Center)
  KeyBank National Association   NY   200707100568495   7/10/07   Equipment, accounts, fixtures and general intangibles
Syracuse MOB, LLC
(Central NY Medical Center)
  KeyBank National Association   Onondaga County NY   00573   6/29/07   Equipment, accounts, fixtures and general intangibles
West Tennessee Investors, LLC
  BankCorpSouth Bank   TN   110037950   9/7/10   Bank account, together with the proceeds thereof and any interest and/or income thereon.
West Tennessee Investors, LLC
  BankCorpSouth Bank   TN   309011004   3/11/09   Equipment, accounts, fixtures and general intangibles
West Tennessee Investors, LLC
  BankCorpSouth Bank   Madison County, TN   Book T1852, Page 353   2/26/09   Equipment, accounts, fixtures and general intangibles
Schedule 8.01

 

Page 5


 

Consolidated Joint Venture Properties
                     
Debtor   Secured Party   State and County   File Number   File Date   Description
Mebane Medical Investors, LLC
  Bank of America   NC   20070053063G   5/31/07   Equipment, accounts, fixtures and general intangibles
Rocky Mount MOB, LLC
  Southern Bank & Trust Company   NC   20010059179, as continued by 20060053453K   6/22/01   Equipment, accounts, fixtures and general intangibles
Rocky Mount MOB, LLC
  Southern Bank & Trust Company   Nash County NC   Book 2117, Page 441   02/10/05   Equipment, accounts, fixtures and general intangibles
Rocky Mount MOB, LLC
  Southern Bank & Trust Company   Nash County NC   Book 2237, Page 13   6/13/06   Equipment, accounts, fixtures and general intangibles
Cogdell Health Campus MOB, LP
  Manufacturers & Traders Trust Company   PA   200732202420   3/13/07   Equipment, accounts, fixtures and general intangibles
Cogdell Health Campus MOB, LP
  Manufacturers & Traders Trust Company   PA   2007032202595   3/13/07   Equipment, accounts, fixtures and general intangibles
Cogdell Health Campus MOB, LP
  Manufacturers & Traders Trust Company   PA   2007032205692   3/14/07   Equipment, accounts, fixtures and general intangibles
Cogdell Health Campus MOB, LP
  Manufacturers & Traders Trust Company   Lancaster County PA   5601312   3/12/07   Equipment, accounts, fixtures and general intangibles
Schedule 8.01

 

Page 6


 

2) Mortgages/ Other Liens
                     
Debtor   Secured Party   State   Loan Number   Maturity Date   Description
Barclay Downs Associates, LP
(Barclay Downs)
  First Citizens Bank   NC   1660711   11/15/2012   Secured mortgage
Beaufort Medical Plaza, LLC
(Beaufort Medical Plaza)
  Wachovia Bank NA   SC   41-05-8069622-8   8/18/2011   Secured mortgage
Brandon MOB Investors, LLC
(University Physicians — Grants Ferry)
  Bancorpsouth Bank   MS   00888000700804   4/20/2019   Secured Mortgage
Brunswick MOB, LLC
(Summit Professional Center I & II)
  Principal Commercial Funding, LLC   GA   756188   9/1/2017   Secured mortgage
Cabarrus Medical Partners, LP
(CabarrusPediatrics,Copperfield Medical Mall, Harrisburg Medical Mall, Midland Medical Mall and Weddington Internal & Pediatric Medicine)
  First Citizens   NC   1560192   12/15/2014   Secured mortgage
Cogdell Investors (OSS), LLC
(St. Francis Outpatient Surgery Center)
  Regions Bank   SC   0000281949   11/28/2011   Secured Mortgage
Cogdell Lancaster Rehab, LP
(Lancaster Rehabilitation Hospital)
  M&T Bank   PA   000-00-0001-8
& 000-00-0003-4
  6/26/2014   Secured Mortgage
East Jefferson Medical Office Building LP
(East Jefferson Medical Office Building)
  CW Capital (Servicer)   LA   3006   8/10/2014   Secured mortgage
East Jefferson Medical Plaza, LLC
(East Jefferson Medical Plaza)
  Bank of America   LA   008827604   1/31/2012   Secured Mortgage
Hanover MOB, LLC
(Hanover Medical Office Building)
  Aviva Life/Medalist Capital   VA   20098875   11/1/2014   Secured mortgage
Healthpark MOB, LLC
(Healthpark Medical Office Building)
  Aviva Life/Medalist Capital   TN   20098876   12/1/2019   Secured mortgage
HMOB Associates LP
(One Medical Park)
  Woodman of the World (Servicer)   SC   00813A   11/1/2013   Secured mortgage
Indianapolis MOB, LLC
(Methodist Professional Center)
  Bank of America, N.A.   IN   007112107   10/31/2011   Secured mortgage
Medical Arts Center of Orangeburg
(Medical Arts of Orangeburg)
  South Carolina Bank & Trust   SC   10926608   5/5/2014   Secured mortgage
Medical Investors I, LP
(Harrisburg Family Physicians Building Lincoln/Lakemont Family Practice Center, Northcross Family Medical Practice Building and Randolph Medical Park)
  First Citizens Bank   NC   1978766   10/15/2014   Secured mortgage
Schedule 8.01

 

Page 7


 

                     
Debtor   Secured Party   State   Loan Number   Maturity Date   Description
Medical Park Three LP
(Three Medical Park)
  Archon Financial/Wachovia Securities (Servicer)   SC   73-9000066   4/1/2014   Secured mortgage
Mulberry Medical Park LP
(Mulberry Medical Park)
  First Citizens   NC   1018142   9/15/2011   Secured mortgage
Parkridge MOB, LLC
(Parkridge Medical Office Building)
  Principal Commercial Funding, LLC   SC   755736   6/1/2017   Secured mortgage
Peerless MOB, LLC
(Peerless Crossing Medical Center)
  SunTrust Bank/Midland Loan Services   TN   30267109   9/1/2016   Secured mortgage
PMOB, LLC
(Providence MOB I, II and III)
  Variable Annuity Life/Grandbridge   SC   718001419   1/1/2013   Secured mortgage
River Hills Medical Associates, LLC
(River Hills Medical Plaza)
  Bank of America   SC   006319574   12/22/2011   Secured mortgage
Rocky Mount Kidney Center Associates
(Rocky Mount Kidney Center)
  Southern Bank & Trust Company   NC   205062/777051   8/21/2014   Secured mortgage
Rocky Mount Medical Park LP
(Rocky Mount Medical Park)
  Regions Bank   NC   277913   10/22/2014   Secured mortgage
Roper MOB, LLC
(Roper MOB)
  Aviva Life/Medalist Capital   SC   20098841   6/1/2019   unknown
Rowan OSC Investors, LP
(Rowan ASC)
  Farmers & Merchants Bank   NC   234354   7/6/14   Secured mortgage
St. Cloud MOB, LLC
(HealthPartners Medical and Dental Clinics)
  Associated Bank   MN   87509120002   11/1/2014   Secured Mortgage
St. Francis Community MOB, LLC
(St. Francis Community Medical Office Building/St. Francis MOB)
  Wachovia Bank NA   SC   41-84-8656042-2   6/15/2011   Secured mortgage
St. Francis Medical Plaza, LLC
(St. Francis Medical Plaza/St. Francis Women’s Center)
  Wachovia Bank NA   SC   41-84-8763678-3   6/15/2011   Secured mortgage
Syracuse MOB, LLC
(Central NY Medical Center)
  KeyBank National Association   NY   10037423   7/1/2017   Secured mortgage
West Tennessee Investors, LLC
(Medical Center Physicians Tower)
  Bancorpsouth Bank   TN   00102000691783   3/1/2019   Secured Mortgage
Schedule 8.01

 

Page 8


 

Consolidated Joint Venture Properties
                     
Debtor   Secured Party   State   Loan Number   Maturity Date   Description
Bonney Lake MOB Investors, LLC
(Bonney Lake Medical Office Building)
  Bank of the West   WA   10-6016366-0 Ln 2-6   2/5/2012   Secured Mortgage
Cogdell Health Campus MOB, LP
(Lancaster ASC MOB)
  M&T Bank   PA   000-0000-0026   3/2/2015   Secured mortgage
Genesis Property Holdings, LLC
(Woodlands Center for Specialized Medicine)
  Compass Bank   TX   42   10/1/2018   Secured Mortgage
Good Sam MOB Investors, LLC
  First Citizens Bank   WA   2413763   6/30/2015   Secured Mortgage
Mebane Medical Investors, LLC
(Primary Mortgage)
  Bank of America   NC   007587268   5/15/2011   Construction loan
Mebane Medical Investors, LLC
(Mebane Medical Park Cancer Center)
  Bank of America   NC   009231008   5/15/2011   Secured Mortgage
Rocky Mount MOB, LLC
(2 loans)
  Southern Bank and Trust Co.   NC   0000304634   3/1/2012   Secured mortgage
Schedule 8.01

 

Page 9


 

SCHEDULE 8.03
EXISTING INDEBTEDNESS
             
        Amount of Debt  
        at December 31,  
Entity Name   Property Name   2010  
 
           
Wholly Owned Properties:
           
 
           
Barclay Downs Associates, LP
  Barclay Downs   $ 4,278,315  
Beaufort Medical Plaza, LLC
  Beaufort Medical Plaza   $ 4,636,520  
Brandon MOB Investors, LLC
  University Physicians — Grants Ferry   $ 10,407,748  
Brunswick MOB, LLC
  Summit Professional Center I & II   $ 15,925,000  
Cabarrus Medical Partners, LP
  Cabarrus Pediatrics, Copperfield Medical Mall, Harrisburg Medical Mall, Midland Medical Mall and Weddington Internal & Pediatric Medicine   $ 8,017,387  
Cogdell Investors (OSS), LLC
  St. Francis Outpatient Surgery Center   $ 13,000,000  
Cogdell Lancaster Rehab, LP
  Lancaster Rehabilitation Hospital   $ 11,547,042  
East Jefferson Medical Office Building LP
  East Jefferson MOB   $ 8,734,545  
East Jefferson Medical Plaza, LLC
  East Jefferson Medical Plaza   $ 11,600,000  
Hanover MOB, LLC
  Hanover MOB   $ 5,905,136  
Health Park MOB, LLC
  Health Park Medical Office Building   $ 6,900,886  
HMOB Associates LP
  One Medical Park   $ 4,852,010  
Indianapolis MOB, LLC
  Methodist Professional Center   $ 25,249,799  
Medical Arts Center of Orangeburg
  Medical Arts of Orangeburg   $ 2,259,485  
Medical Investors I, LP
  Lincoln/Lakemont Family Practice Center, Northcross Family Medical Practice Building and Randolph Medical Park   $ 7,302,646  
Medical Park Three LP
  Three Medical Park   $ 7,454,871  
Mulberry Medical Park LP
  Mulberry Medical Park   $ 862,958  
Parkridge MOB, LLC
  Parkridge MOB   $ 13,500,000  
Peerless MOB, LLC
  Peerless Crossing Medical Center   $ 7,252,880  
PMOB, LLC
  Providence MOB I, II and III   $ 8,067,254  
River Hills Medical Associates, LLC
  River Hills Medical Plaza   $ 3,444,546  
Rocky Mount Kidney Center Associates
  Rocky Mount Kidney Center   $ 961,873  
Rocky Mount Medical Park LP
  Rocky Mount Medical Park   $ 10,278,890  
Roper MOB, LLC
  Roper MOB   $ 9,281,441  
Rowan OSC Investors, LP
  Rowan ASC   $ 3,147,504  
St. Cloud MOB, LLC
  HealthPartners Medical & Dental Clinics   $ 12,064,890  
St. Francis Community MOB, LLC
  St. Francis Community MOB / St. Francis MOB   $ 6,687,874  
St. Francis Medical Plaza, LLC
  St. Francis Medical Plaza / St. Francis Women’s Center   $ 7,183,950  
Syracuse MOB, LLC
  Central NY Medical Center   $ 24,500,000  
West Tennessee Investors, LLC
  Medical Center Physicians Tower   $ 14,706,784  
Schedule 8.03

 

Page 1


 

             
        Amount of Debt  
        at December 31,  
Entity Name   Property Name   2010  
 
           
Consolidated Joint Venture Properties:
           
 
           
Bonney Lake MOB Investors, LLC
  Bonney Lake Medical Office Building   $ 2,936,572  
Cogdell Health Campus MOB, LP
  Lancaster ASC MOB   $ 10,210,387  
Genesis Property Holdings, LLC
  Woodlands Center for Specialized Medicine   $ 16,609,834  
Good Sam MOB Investors, LLC
  Good Samaritan Medical Office Building   $ *
Mebane Medical Investors, LLC
  Alamance Regional Mebane Outpatient Center   $ 12,308,158  
Rocky Mount MOB, LLC
  English Road Medical Center   $ 5,161,625  
     
*  
A construction loan is in place for Good Sam MOB Investors, LLC. However, no amounts were drawn as of December 31, 2010. The balance at February 28, 2011 was approximately $387,000.
Schedule 8.03

 

Page 2


 

SCHEDULE 11.02
ADMINISTRATIVE AGENT’S OFFICE,
CERTAIN ADDRESSES FOR NOTICES
BORROWER AND CSI:
Cogdell Spencer LP / Cogdell Spencer Inc.
4401 Barclay Downs Drive, Suite 300
Charlotte, North Carolina 28209-4670
Attention: Raymond W. Braun, President / Charles M. Handy, Chief Financial Officer
Telephone: 704.940.2900 / 704.940.2900
Telecopier: 704.940.2957 / 704.940.2959
Electronic Mail: rbraun@cogdell.com / chandy@cogdell.com
Website Address: www.cogdell.com
U.S. Taxpayer Identification Number: 20-3648261 / 20-3126457
ADMINISTRATIVE AGENT:
Administrative Agent’s Office (for payments):
Bank of America, N.A.
Southside Center
6000 Feldwood Road
Mail Code: GA4-004-04-14
College Park, Georgia 30349-3652
Attention: Diana A. Thompson Giles
Telephone: 404.607.3080
Telecopier: 404.607.3043
Electronic Mail: diane.a.giles@baml.com
Wiring Instructions:
Bank of America, N.A.
ABA No.: 0260-0959-3
GL No.: 1366211723000
Reference: Cogdell Spencer
Loan No: Obligor #673404 / CA #1731814
Advise: Diane Giles
Telephone: 404-607-3084
Schedule 11.02

 

Page 1


 

Other Notices and Requests for Credit Extensions as Administrative Agent:
Bank of America, N.A.
Commercial Real Estate Banking
100 North Tryon Street, 11th Floor
Mailcode: NC1-007-11-15
Charlotte, North Carolina 28255
Attention: Joy Auten
Telephone: 980.386.7524
Telecopier: 980.683.9480
Electronic Mail: Joy Auten@baml.com
L/C ISSUER (Standby Letters of Credit / Commercial Letters of Credit):
Bank of America, N.A.
Trade Operations-Los Angeles
L.A. Data Center Building, Suite — Level 7
Mail Code: CA9-705-07-05
Los Angeles, California 90012-1514
Telephone: 800.541.6096
SWING LINE LENDER (for payments):

Bank of America, N.A.
Southside Center
6000 Feldwood Road
Mail Code: GA4-004-04-14
College Park, Georgia 30349-3652
Attention: Diana A. Thompson Giles
Telephone: 404.607.3080
Telecopier: 404.607.3043
Electronic Mail: diane.a.giles@baml.com
Wiring Instructions:
Bank of America, N.A.
ABA No.: 0260-0959-3
GL No.: 1366211723000
Reference: Cogdell Spencer
Loan No: Obligor #673404 / CA #1731814
Advise: Diane Giles
Telephone: 404-607-3084
Schedule 11.02

 

Page 2


 

SWING LINE LENDER (other notices):

Bank of America, N.A.
Commercial Real Estate Banking
100 North Tryon Street, 11th Floor
Mailcode: NC1-007-11-15
Charlotte, North Carolina 28255
Attention: Joy Auten
Telephone: 980.386.7524
Telecopier: 980.683.9480
Electronic Mail: Joy Auten@baml.com
Schedule 11.02

 

Page 3


 

EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date:                     ,                     
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 1, 2011 (as amended, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Cogdell Spencer LP, a Delaware limited partnership (the “Borrower”), Cogdell Spencer Inc., a Maryland corporation, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The undersigned hereby requests (select one):
  o  
A Borrowing of Committed Loans
 
  o  
A conversion or continuation of Committed Loans
 
  1.  
On  _____ (a Business Day).
 
  2.  
In the amount of $_____.
 
  3.  
Comprised of  _____________________________________.
[Type of Committed Loan requested
(i.e., Eurodollar Rate Loan or Base Rate Loan)]
  4.  
For Eurodollar Rate Loans: with an Interest Period of  _____ months.
The Committed Borrowing, if any, requested herein complies with the provisos to the first sentence of Section 2.01 of the Agreement.
         
  COGDELL SPENCER LP, as Borrower

By: CS Business Trust I, its General Partner
 
 
  By:      
    Name:      
    Title:      
Form of Committed Loan Notice

 

A-1


 

EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To:  
Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 1, 2011 (as amended, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Cogdell Spencer LP, a Delaware limited partnership (the “Borrower”), Cogdell Spencer Inc., a Maryland corporation, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
  1.  
On  _____ (a Business Day).
 
  2.  
In the amount of $_____.
The Swing Line Borrowing requested herein complies with the requirements of the provisos to the first sentence of Section 2.04(a) of the Agreement.
         
  COGDELL SPENCER LP, as Borrower

By: CS Business Trust I, its General Partner
 
 
  By:      
    Name:      
    Title:      
Form of Swing Line Loan Notice

 

B-1


 

EXHIBIT C-1
FORM OF NOTE
     
$ _____    March 1, 2011
FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to  _____ or registered assigns (“Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to Borrower under that certain Amended and Restated Credit Agreement, dated as of March 1, 2011 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of the Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. Attorneys’ fees in connection with collections hereunder shall be payable as provided in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Facility Guaranty and the Guaranty. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
Form of Note

 

C-1-1


 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
         
  COGDELL SPENCER LP, as Borrower

By: CS Business Trust I, its General Partner
 
 
  By:      
    Name:      
    Title:      
Form of Note

 

C-1-2


 

LOANS AND PAYMENTS WITH RESPECT THERETO
                                                 
                                Amount of     Outstanding        
                        End of     Principal or     Principal        
        Type of     Amount of     Interest     Interest Paid     Balance This     Notation  
Date     Loan Made     Loan Made     Period     This Date     Date     Made By  
Form of Note

 

C-1-3


 

EXHIBIT C-2
FORM OF AMENDED AND RESTATED NOTE
     
$  _____    March 1, 2011
FOR VALUE RECEIVED, the undersigned (“Borrower”), hereby promises to pay to  _____ or registered assigns (“Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to Borrower under that certain Amended and Restated Credit Agreement, dated as of March 1, 2011 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of the Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. Attorneys’ fees in connection with collections hereunder shall be payable as provided in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is issued in replacement of a Note dated March 10, 2008, issued to the Lender pursuant to the Existing Credit Agreement (the “Original Note”), and does not effect any refinancing or extinguishment of the indebtedness and obligations of such Original Note and is not a novation but is a replacement of such Original Note. This Note is also entitled to the benefits of the Facility Guaranty and the Guaranty. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
Form of Amended and Restated Note

 

C-2-1


 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
         
  COGDELL SPENCER LP, as Borrower

By: CS Business Trust I, its General Partner
 
 
  By:      
    Name:      
    Title:      
Form of Amended and Restated Note

 

C-2-2


 

LOANS AND PAYMENTS WITH RESPECT THERETO
                                                 
                                Amount of     Outstanding        
                        End of     Principal or     Principal        
        Type of     Amount of     Interest     Interest Paid     Balance This     Notation  
Date     Loan Made     Loan Made     Period     This Date     Date     Made By  
Form of Amended and Restated Note

 

C-2-3


 

EXHIBIT D
FORM OF AVAILABLE AMOUNT CERTIFICATE
Date: __________ _____, _______
To:  
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 1, 2011 (as amended, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Cogdell Spencer LP, a Delaware limited partnership (the “Borrower”), Cogdell Spencer Inc., a Maryland corporation (“CSI”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The undersigned hereby certifies as of the date hereof that he/she is the Chief Financial Officer of CSI, and that, as such, he/she is authorized to execute and deliver this Certificate to Agent on the behalf of CSI, and that analyses and information in determining the Available Amount set forth on Exhibit 1 attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of  _____,  _____.
         
  COGDELL SPENCER INC.
 
 
  By:      
    Name:      
    Title:   Chief Financial Officer   
Form of Available Amount Certificate

 

D-1


 

Date: ___________________ (“Determination Date”)
EXHIBIT 1
to the Available Amount Certificate
         
I. Total Collateral Value.
       
 
       
A. aggregate Appraised Value of each Borrowing Base Property that is Stabilized, as determined by a FIRREA — compliant appraisal (from Item A of Schedule A attached hereto):
  $                       
 
       
B. Such aggregate Appraised Value (Line I.A.) times (i) if the Determination Date is before March 1, 2013, 0.70 or (ii) if the Determination Date is on or after March 1, 2013, 0.65:
  $                       
 
       
C. For each Borrowing Base Property that is a Development Property and is at least 50% pre-leased1, the GAAP book value of each such property times 0.50 minus the Remaining Development amount, if any, required to complete such property:2
  $                       
 
       
D. Total Collateral Value (Line I.B. + I.C.)
  $                       
 
       
II. Synthetic DSCR Principal Amount.
       
 
       
A. aggregate Net Operating Income attributable to the Borrowing Base Properties (excluding Net Operating Income, if any, from Development Properties) for fiscal quarter of CSI most recently ended (from Item B of Schedule A attached hereto):
  $                       
 
       
B. Capital Reserves for Borrowing Base Properties for fiscal quarter of CSI most recently ended (from Item C of Schedule A attached hereto):
  $                       
 
       
C. Mortgageable Net Operating Income (Line II.A. — Line II.B.):
  $                       
 
       
D. Annualized Mortgageable Net Operating Income (Line II.C. times 4):
  $                       
 
     
1  
Only include each such Property until the earlier of (i) the one year anniversary date of project completion or (ii) the first full fiscal quarter after such Property becomes stabilized.
 
2  
In no event shall this amount constitute more than 20% of the Total Collateral Value.
Form of Available Amount Certificate

 

D-2


 

         
E. Per annum yield on United States Treasury securities having a ten year maturity as of Determination Date plus 2.50%:
                         %
 
       
F. Synthetic DSCR Interest Rate: greater of (i) 7.00% and (ii) Line II.E.:
                         %
 
       
G. Annualized aggregate debt service on 30-year loan bearing interest (365-6/360 basis) at Synthetic DSCR Interest Rate (Line II.F.) assuming monthly, level-debt service payments (Line II.D. ¸ [_____]3):
  $                       
 
       
H. For each Development Property that is at least 50% pre-leased4, the aggregate GAAP book value of such properties times 0.50:5
       
 
       
I. Synthetic DSCR Principal Amount (principal amount of loan that would result in debt service of Line II.G. + II.H.):
  $                       
 
       
III. Aggregate Commitments.
       
 
       
A. Commitments of all Lenders at Determination Date:
  $                       
 
       
Available Amount (the least of Lines I.B., II.I. and III.A.):
  $                       
 
     
3  
If the Determination Date is before March 1, 2013, insert 1.30. If the Determination Date is on or after March 1, 2013, insert 1.50.
 
4  
Only include each such property until the earlier of (i) the one year anniversary date of project completion or (ii) the first full fiscal quarter after such Property becomes Stabilized.
 
5  
In no event shall this amount constitute more than 20% of the Total Collateral Value.
Form of Available Amount Certificate

 

D-3


 

Schedule A to Exhibit I
                         
            Net Operating Income        
Borrowing Base Property   Appraised Value     (FQ ended ______, 20___)     Capital Reserves  
 
                       
1.                     
  $                          $                          $                       
2.                     
                                                                                
3.                     
                                                                                
4.                     
                                                                                
5.                     
                                                                                
6.                     
                                                                                
7.                     
                                                                                
8.                     
                                                                                
9.                     
                                                                                
10.                     
                                                                                
11.                     
                                                                                
12.                     
                                                                                
13.                     
                                                                                
14.                     
                                                                                
15.                     
                                                                                
16.                     
                                                                                
 
                       
AGGREGATE
  $ (A )   $ (B )   $ (C)  
 
                 
Form of Available Amount Certificate

 

D-4


 

EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: __________ ___, _______
To:  
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 1, 2011 (as amended, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Cogdell Spencer LP, a Delaware limited partnership (the “Borrower”), Cogdell Spencer Inc., a Maryland corporation (“CSI”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the  _____6 of CSI, and that, as such, he/she is authorized to execute and deliver this Certificate to Agent on the behalf of CSI, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 7.01(a) of the Agreement for the fiscal year of CSI ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.7
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements required by Section 7.01(b) of the Agreement for the fiscal quarter of CSI ended as of the above date. Such financial statements fairly present the financial condition, results of operations and cash flows of CSI and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.8
2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of CSI and its Subsidiaries during the accounting period covered by the attached financial statements.
 
     
6  
Officer executing certificate must be chief financial officer of CSI.
 
7  
Do not include such paragraph if financial statements have been delivered electronically in accordance with the second paragraph of Section 7.02 of the Agreement.
 
8  
Do not include such paragraph if financial statements have been delivered electronically in accordance with the second paragraph of Section 7.02 of the Agreement.
Form of Compliance Certificate

 

E-1


 

3. A review of the activities of CSI during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period CSI and its Subsidiaries performed and observed all their respective Obligations under the Loan Documents, and
[select one:]
[to the best knowledge of the undersigned during such fiscal period, each of CSI and each of its Subsidiaries performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
—or—
[the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
4. The representations and warranties of CSI and Borrower contained in Article VI of the Agreement, and/or any representations and warranties of CSI, Borrower or any other Loan Party that are contained in any document furnished at any time under or in connection with the Loan Documents, are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered.
5. The financial covenant analyses and information set forth on Schedules 1 and 2 attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of  _____,  _____.
         
  COGDELL SPENCER INC.
 
 
  By:      
    Name:      
    Title:      
Form of Compliance Certificate

 

E-2


 

For the Quarter/Year ended ___________________ (“Statement Date”)
SCHEDULE 2
to the Compliance Certificate
($ in 000’s)
         
I. Section 7.12(a) —Total Leverage Ratio.
       
 
       
A. Consolidated Total Indebtedness at Statement Date:
  $                       
 
       
B. Consolidated Total Asset Value at Statement Date:
       
 
       
1. cash, cash equivalents and the value of marketable securities, in each case of the Borrower and its Subsidiaries:
  $                       
 
       
2. Adjusted Property EBITDA attributable to each Property owned by the Borrower or any Subsidiary (other than a Development Property or Unimproved Land) for the fiscal quarter most recently ended (attach schedule for each Property reflecting the following):
       
 
       
a. net income (loss):
  $                       
 
       
[to the extent included in determination of such net income (loss)]:
       
 
       
i. depreciation and amortization expense:
  $                       
 
       
ii. interest expense, including capitalized interest not funded under a construction loan interest reserve account:
  $                       
 
       
iii. income tax expense:
  $                       
 
       
iv. extraordinary or non-recurring gains and losses:
  $                       
 
       
v. Lines I.B.2.a. — I.B.2.a.i. — I.B.2.a.ii. - I.B.2.a.iii. — I.B.2.a.iv.:
  $                       
 
       
b. Capital Reserves:
  $                       
 
       
c. Adjusted Property EBITDA (for all Properties) for the fiscal quarter most recently ended (Lines I.B.2.a.v. — I.B.2.b.):
  $                       
 
       
d. Line I.B.2.c. times 4:
  $                       
 
       
e. Line I.B.2.d. ¸ 0.080:
  $                       
Form of Compliance Certificate

 

E-3


 

         
3. GAAP book value of Properties acquired during the four consecutive fiscal quarters ending on the Statement Date (the “Subject Period”):
  $                       
 
       
4. GAAP book value of all Development Properties:
  $                       
 
       
5. The portion of Consolidated Adjusted EBITDA attributable to Erdman and its Subsidiaries applied on a consistent basis for the Subject Period times 8:9
  $                       
 
       
6. GAAP book value of Unimproved Land, Mortgage Receivables and other promissory notes:
  $                       
 
       
7. Consolidated Total Asset Value (Lines I.B.1. + I.B.2.e. + I.B.3. + I.B.4. + I.B.5. + I.B.6.):
  $                       
 
       
C. Ratio (Line I.A. ¸ Line I.B.7.):
                         to 1.0
 
       
Maximum Permitted:
       
     
    Maximum
    Consolidated
Four Fiscal Quarters Ending   Leverage Ratio
Effective Date through March 31, 2013
  0.65 to 1.00
April 1, 2013 and thereafter
  0.60 to 1.00
         
II. Section 7.12(b) — Secured Recourse Indebtedness Ratio.
       
 
       
A. Secured Recourse Indebtedness (excluding Indebtedness under the Credit Agreement) at Statement Date:
  $                       
 
       
B. Consolidated Total Asset Value at Statement Date (Line I.B.7.):
  $                       
 
       
C. Secured Recourse Indebtedness Ratio (Line II.A. ¸ Line II.B.)
                         to 1.0
 
       
Maximum Permitted:
  0.20 to 1.00
 
       
III. Section 7.12(c) — Fixed Charge Coverage Ratio.
       
 
       
A. Consolidated Adjusted EBITDA of CSI and its Subsidiaries for Subject Period:
       
 
       
1. net income (loss):
  $                       
 
       
[to the extent included in determination of such net income (loss)]:
       
 
       
a. depreciation and amortization expense:
  $                       
 
     
9  
Shall not exceed 15% of consolidated Total Asset Value.
Form of Compliance Certificate

 

E-4


 

         
b. Consolidated Interest Expense:
  $                       
 
       
c. income tax expense:
  $                       
 
       
d. extraordinary or non-recurring losses:
  $                       
 
       
e. extraordinary or non-recurring gains:
  $                       
 
       
f. Lines III.A.1. + III.A.1.a. + III.A.1.b. + III.A.1.c. + III.A.1.d. — III.A.1.e.:
  $                       
 
       
2. CSI’s pro rata share of net income (loss) of Unconsolidated Affiliates for the Subject Period:
  $                       
 
       
[to the extent included in determination of such net income (loss)]:
       
 
       
a. depreciation and amortization expense:
  $                       
 
       
b. interest expense (without duplication of any amounts excluded as Consolidated Interest Expense under Line III.A.1.b. above):
  $                       
 
       
c. income tax expense:
  $                       
 
       
d. extraordinary or non-recurring losses of Unconsolidated Affiliates:
  $                       
 
       
e. extraordinary or non-recurring gains of Unconsolidated Affiliates
       
 
       
f. Lines III.A.2. + III.A.2.a. + III.A.2.b. + III.A.2.c. + III.A.2.d. — III.A.2.e.:
  $                       
 
       
3. Inter-company eliminations related to Erdman and its subsidiaries:
  $                       
 
       
4. Capital Reserves :
  $                       
 
       
5. Consolidated Adjusted EBITDA for Subject Period (Lines III.A.1.f. + III.A.2.f. + III.A.3-III.A.4.):
  $                       
Form of Compliance Certificate

 

E-5


 

         
B. Consolidated Fixed Charges of CSI and its Subsidiaries for Subject Period:
  $                                   
 
       
C. Ratio (Line III.A.5. ¸ Line III.B.):
                         to 1.0
 
       
Minimum Required:
       
     
    Minimum Fixed
    Charge
Four Fiscal Quarters Ending   Coverage Ratio
Effective Date through March 31, 2012
  1.35 to 1.00
April 1, 2012 and thereafter
  1.50 to 1.00
         
IV. Section 7.12(d) — Consolidated Tangible Net Worth.
       
 
       
A. Consolidated Tangible Net Worth of CSI and its Subsidiaries at Statement Date:
       
 
       
1. stockholders’ equity of CSI and its Subsidiaries determined on a consolidated basis:
  $                       
 
       
2. accumulated depreciation and amortization:
  $                       
 
       
3. (to the extent deducted in determining stockholders’ equity) minority interests in operating partnership, determined in accordance with GAAP:
  $                       
 
       
[to the extent included in determination of such net income (loss)]:
       
 
       
a. amount of any write-up in the book value of any assets contained on CSI’s consolidated balance sheet resulting from revaluation thereof or any write-up in excess of the cost of such assets acquired:
  $                       
 
       
b. all amounts appearing on the assets side of CSI’s consolidated balance sheet for assets which would be classified as intangible assets under GAAP:
  $                       
Form of Compliance Certificate

 

E-6


 

         
4. Consolidated Tangible Net Worth (Lines IV.A.1. + IV.A.2. + IV.A.3 — IV.A.3.a. — IV.A.3.b.):
  $                       
 
       
B. 1. $237,105,600.00:
  $                       
 
       
2. Net Proceeds of Equity Issuances after the Effective Date:
  $                       
 
       
3. Line IV.B.2. times 0.80:
  $                       
 
       
4. Minimum Required Tangible Net Worth (Lines IV.B.1. + IV.B.3.):
  $                       
 
       
C. Excess (deficiency) for covenant compliance (Line IV.A.6. — Line IV.B.4.):
  $                       
 
       
V. Section 7.12(e) — Facility Interest Coverage.
       
 
       
A. Net Operating Income of the Borrowing Base Properties for Subject Period:
       
 
       
1. gross revenues for the Borrowing Base Properties for Subject Period received in the ordinary course of business (excluding pre-paid rents and revenues and security deposits except to the extent applied in satisfaction of tenants’ obligation for rent):
  $                       
 
       
2. operating expenses incurred with respect to the Borrowing Base Properties during the Subject Period (including on appropriate accrual for property taxes and insurance):
  $                       
 
       
[to the extent not duplicative of deduction already taken in the calculation of Net Operating Income]:
       
 
       
a. 4% of the annualized gross revenues of the Borrowing Base Properties:
  $                       
 
       
b. annualized amount of management fees actually incurred for the Borrowing Base Properties:
  $                       
 
       
c. Greater of Line V.A.2.a. and V.A.2.b.:
  $                       
 
       
3. Net Operating Income of the Borrowing Base Properties (Line V.A.1 — V.A.2 — V.A.2.c.)
  $                       
 
       
B. Facility Interest Expense:
  $                       
 
       
C. Facility Interest Coverage Ratio (Line V.A.3 ÷IV.B.)
  $                       
 
       
Minimum Required:
  1.50 to 1.00
 
       
Form of Compliance Certificate

 

E-7


 

EXHIBIT F
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified in item 1 below ([the][each, an] Assignor”) and [the][each]2 Assignee identified in item 2 below ([the][each, an]Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including, without limitation, the Letters of Credit and the Swing Line Loans included in such facilities5) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an]Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
 
     
1  
For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
 
2  
For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
 
3  
Select as appropriate.
 
4  
Include bracketed language if there are either multiple Assignors or multiple Assignees.
 
5  
Include all applicable subfacilities.
Form of Assignment and Assumption

 

F-1


 

     
1. Assignor[s]:
                                          
 
   
2. Assignee[s]:
                                          
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
 
   
3. Borrower:
  Cogdell Spencer LP
 
  &nb