Revolving Credit Agreement (2015)Full Document 

Start of Preview

REVOLVING CREDIT AGREEMENT
among
BRANDYWINE REALTY TRUST and
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
as Borrowers
and
THE LENDERS IDENTIFIED HEREIN
and
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Lender and Issuing Lender
and
CITIBANK, N.A.,
as Syndication Agent, Swing Lender and Issuing Lender
and
CITIZENS BANK, N.A., PNC BANK, NATIONAL ASSOCIATION,
ROYAL BANK OF CANADA and THE BANK OF NEW YORK MELLON,
as Co-Documentation Agents
and
BANK OF MONTREAL, BARCLAYS BANK PLC, SUNTRUST BANK,
TD BANK, N.A., U.S. BANK NATIONAL ASSOCIATION and
WELLS FARGO BANK, N.A.,
as Senior Managing Agents
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Bookrunners

DATED AS OF MAY 15, 2015






TABLE OF CONTENTS
        


 
 
 
 
Page
 
 
 
 
 
SECTION 1.

 
DEFINITIONS AND ACCOUNTING TERMS
 
1

 
 
 
 
 
1.1

 
Definitions
 
1

1.2

 
Computation of Time Periods and Other Definition Provisions
 
32

1.3

 
Accounting Terms
 
33

1.4

 
Joint Venture Investments
 
34

 
 
 
 
 
SECTION 2.

 
CREDIT FACILITY
 
34

 
 
 
 
 
2.1

 
Revolving Loans
 
34

2.2

 
Competitive Bid Option
 
40

2.3

 
Letter of Credit Subfacility
 
45

2.4

 
Joint and Several Liability of the Borrowers
 
55

2.5

 
Appointment of BOP
 
58

2.6

 
Non-Recourse
 
58

2.7

 
Incremental Facilities
 
58

 
 
 
 
 
SECTION 3.

 
GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
 
62

 
 
 
 
 
3.1

 
Interest
 
62

3.2

 
Place and Manner of Payments
 
63

3.3

 
Prepayments
 
65

3.4

 
Fees
 
66

3.5

 
Payment in full at Maturity; Extension of Maturity
 
67

3.6

 
Computations of Interest and Fees
 
68

3.7

 
Pro Rata Treatment
 
69

3.8

 
Sharing of Payments
 
70

3.9

 
Capital Adequacy
 
71

3.10

 
Inability To Determine Interest Rate
 
71

3.11

 
Illegality
 
72

3.12

 
Requirements of Law
 
72

3.13

 
Taxes
 
73

3.14

 
Compensation
 
78

3.15

 
Mitigation; Mandatory Assignment
 
79

 
 
 
 
 
SECTION 4.

 
[RESERVED]
 
79

 
 
 
 
 
SECTION 5.

 
CONDITIONS PRECEDENT
 
80

 
 
 
 
 
5.1

 
Closing Conditions
 
80

5.2

 
Conditions to All Extensions of Credit
 
83

 
 
 
 
 
SECTION 6.

 
REPRESENTATIONS AND WARRANTIES
 
84

 
 
 
 
 
6.1

 
Financial Condition
 
84



 
i
 


TABLE OF CONTENTS
(continued)


 
 
 
 
Page
6.2

 
No Material Change
 
85

6.3

 
Organization and Good Standing
 
85

6.4

 
Due Authorization
 
85

6.5

 
No Conflicts
 
85

6.6

 
Consents
 
86

6.7

 
Enforceable Obligations
 
86

6.8

 
No Default
 
86

6.9

 
Ownership
 
86

6.10

 
Indebtedness
 
86

6.11

 
Litigation
 
87

6.12

 
Taxes
 
87

6.13

 
Compliance with Law
 
87

6.14

 
Compliance with ERISA
 
87

6.15

 
Organization Structure/Subsidiaries
 
88

6.16

 
Use of Proceeds;Margin Stock
 
89

6.17

 
Government Regulation
 
89

6.18

 
Environmental Matters
 
89

6.19

 
Solvency
 
91

6.20

 
[RESERVED]
 
91

6.21

 
Location of Properties
 
91

6.22

 
Disclosure
 
91

6.23

 
Licenses, etc.
 
91

6.24

 
No Burdensome Restrictions
 
91

6.25

 
Eligible Subsidiaries
 
91

6.26

 
OFAC
 
92

6.27

 
Anti-Corruption Laws
 
92

 
 
 
 
 
SECTION 7.

 
AFFIRMATIVE COVENANTS
 
92

 
 
 
 
 
7.1

 
Information Covenants
 
92

7.2

 
Financial Covenants
 
97

7.3

 
Preservation of Existence
 
97

7.4

 
Books and Records
 
98

7.5

 
Compliance with Law
 
98

7.6

 
Payments of Taxes and Other Indebtedness
 
98

7.7

 
Insurance
 
98

7.8

 
Maintenance of Assets
 
98

7.9

 
Performance of Obligations
 
99

7.10

 
Use of Proceeds
 
99

7.11

 
Audits/Inspections
 
99

7.12

 
Additional Credit Parties
 
99

7.13

 
Anti-Corruption Laws
 
100

 
 
 
 
 

 
ii
 


TABLE OF CONTENTS
(continued)


 
 
 
 
Page
7.14

 
Construction
 
100

 
 
 
 
 
SECTION 8.

 
NEGATIVE COVENANTS
 
100

 
 
 
 
 
8.1

 
Indebtedness
 
100

8.2

 
Liens
 
101

8.3

 
Nature of Business
 
101

8.4

 
Consolidation and Merger
 
101

8.5

 
Sale or Lease of Assets
 
101

8.6

 
[Intentionally Omitted]
 
102

8.7

 
Restricted Payments
 
102

8.8

 
Transactions with Affiliates
 
102

8.9

 
Fiscal Year; Organizational Documents
 
102

8.10

 
Limitations
 
103

8.11

 
Other Negative Pledges
 
103

8.12

 
Sanctions
 
103

8.13

 
Anti-Corruption Laws
 
104

 
 
 
 
 
SECTION 9.

 
EVENTS OF DEFAULT
 
104

 
 
 
 
 
9.1

 
Events of Default
 
104

9.2

 
Acceleration; Remedies
 
107

9.3

 
Allocation of Payments After Event of Default
 
108

 
 
 
 
 
SECTION 10.

 
AGENCY PROVISIONS
 
109

 
 
 
 
 
10.1

 
Appointment and Authority
 
109

10.2

 
Rights as Lender
 
110

10.3

 
Exculpatory Provisions
 
110

10.4

 
Reliance by Administrative Agent
 
111

10.5

 
Delegation of Duties
 
111

10.6

 
Resignation of Administrative Agent
 
112

10.7

 
Non-Reliance on Administrative Agent and Other Lenders
 
114

10.8

 
No Other Duties, Etc.
 
114

 
 
 
 
 
SECTION 11.

 
MISCELLANEOUS
 
114

 
 
 
 
 
11.1

 
Notices
 
114

11.2

 
Right of Set-Off
 
117

11.3

 
Benefit of Agreement
 
117

11.4

 
No Waiver, Remedies Cumulative
 
122

11.5

 
Payment of Expenses; Indemnification
 
122

11.6

 
Amendments, Waivers and Consents
 
123

11.7

 
Counterparts/Telecopy
 
125

11.8

 
Headings
 
126

 
 
 
 
 

 
iii
 


TABLE OF CONTENTS
(continued)


 
 
 
 
Page
11.9

 
Defaulting Lender
 
126

11.10

 
Survival of Indemnification and Representations and Warranties
 
130

11.11

 
Governing Law; Jurisdiction
 
130

11.12

 
Waiver of Jury Trial
 
130

11.13

 
Times of Day; Rates
 
131

11.14

 
Severability
 
131

11.15

 
Entirety
 
131

11.16

 
Binding Effect
 
131

11.17

 
Confidentiality
 
132

11.18

 
Further Assurances
 
133

11.19

 
Release of Guarantors
 
134

11.20

 
USA PATRIOT Act
 
134

11.21

 
Limitation on Liability
 
134

11.22

 
No Fiduciary Duty
 
135

11.23

 
Additional Guaranties
 
135



 
iv
 




SCHEDULES
Schedule EG    Eligible Ground Leases
Schedule 2.2
Existing Competitive Bid Loans
Schedule 2.3(c)
Existing Letters of Credit
Schedule 6.15    Organization Structure/Subsidiaries
Schedule 6.21    Properties
Schedule 6.25    Eligible Unencumbered Property Subsidiaries
Schedule 8.2    Existing Liens
Schedule 11.1    Notices
EXHIBITS
Exhibit 1.1(a)    Revolving Loan Commitments and Commitment Percentages
Exhibit 1.1(b)    Swing Loan Commitments
Exhibit 1.1(c)    LOC Commitments
Exhibit 2.1(c)    Form of Notice of Borrowing
Exhibit 2.1(f)    Form of Notice of Continuation/Conversion
Exhibit 2.1(h)    Form of Revolving Note
Exhibit 2.2(b)    Form of Competitive Bid Quote Request
Exhibit 2.2(c)    Form of Invitation for Competitive Bid Quotes
Exhibit 2.2(d)(ii)    Form of Competitive Bid Quote
Exhibit 3.13-1    Form of U.S. Tax Compliance Certificate
Exhibit 3.13-2    Form of U.S. Tax Compliance Certificate
Exhibit 3.13-3    Form of U.S. Tax Compliance Certificate
Exhibit 3.13-4    Form of U.S. Tax Compliance Certificate
Exhibit 7.1(c)    Form of Officer’s Certificate
Exhibit 7.12    Form of Guaranty
Exhibit 11.3(b)    Form of Assignment Agreement
Exhibit 11.3(e)-1    Form of Designation Agreement
Exhibit 11.3(e)-2    Form of Designated Bank Note





REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (as amended, supplemented or otherwise modified from time to time, this “Credit Agreement”) is entered into as of May 15, 2015 among BRANDYWINE REALTY TRUST (“BRT”), a Maryland real estate investment trust, BRANDYWINE OPERATING PARTNERSHIP, L.P. (“BOP”), a Delaware limited partnership (collectively, the “Borrowers”), the Lenders (as defined herein), and BANK OF AMERICA, N.A., as Administrative Agent for the Lenders, Swing Lenders and Issuing Lenders.
RECITALS
WHEREAS, the Borrowers desire that the Lenders provide (i) a revolving credit facility in an initial aggregate amount of up to $600 million with the option to increase the aggregate amount by up to an additional $400 million, (ii) swing loans, (iii) letters of credit, and (iv) competitive bid borrowings;
WHEREAS, the Lenders party hereto have agreed to make the requested revolving credit facility available to the Borrowers on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1     Definitions.
As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires. Defined terms herein shall include in the singular number the plural and in the plural the singular:
Acquisition Property” means, as of any date of determination, a Property owned by a Borrower or a Subsidiary thereof for fewer than 24 months since the date of acquisition (regardless of whether such date of acquisition occurs prior to or after the Closing Date), unless the Borrowers have made a one-time election to treat such Property as a Stabilized Property for purposes of calculating Total Asset Value and Unencumbered Value.
Additional Guarantees” has the meaning set forth in Section 11.23.
Additional Guarantors” has the meaning set forth in Section 11.23.
Adjusted Eurodollar Rate” means the Eurodollar Rate plus the Applicable Percentage for Eurodollar Loans.





Adjusted NOI” means NOI less (a) an annual sum of $0.25 per square foot for all Properties and (b) all interest income of the Combined Parties for the applicable period.
Administrative Agent” means Bank of America, N.A. or any successor administrative agent appointed pursuant to Section 10.
Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.
Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling (including, but not limited to, all directors and officers of such Person), controlled by or under direct or indirect common control with such Person. A Person shall be deemed to control a corporation, partnership, limited liability company or real estate investment trust if such Person possesses, directly or indirectly, the power (i) to vote 10% or more of the securities having ordinary voting power for the election of directors of such corporation or real estate investment trust or to vote 10% or more of the partnership or membership interests of such partnership or limited liability company or (ii) to direct or cause direction of the management and policies of such corporation, trust, limited liability company or partnership, whether through the ownership of voting securities, as managing member or general partner, by contract or otherwise.
Agency Services Address” means 135 S. LaSalle St.  /  Mail Code: IL4-135-09-51 Chicago, IL  60603, Attn: Loan and Agency, or such other address as may be identified by written notice from the Administrative Agent to the Borrowers.

Agent-Related Persons” means the Administrative Agent (including any successor administrative agent), together with its Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
Annualized Modified Adjusted NOI” means an amount equal to Adjusted NOI for the prior fiscal quarter for all Properties owned during such fiscal quarter multiplied times four.
Applicable Percentage” means, with respect to any Loans or the Facility Fees, if (a) BOP has two Unsecured Senior Debt Ratings in effect, the appropriate applicable percentages corresponding to the Pricing Level in the table below based upon the higher of the two Unsecured Senior Debt Ratings or (b) if BOP has one Unsecured Senior Debt Rating in effect, the appropriate applicable percentages corresponding to the Pricing Level in the table below based on such Unsecured Senior Debt Rating; provided that if BOP does not have at least one Unsecured Senior Debt Rating in effect, the Applicable Percentage and Facility Fee Rate shall be based on Pricing Level V below:

End of Preview