EX. 10.50
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REVOLVING LOAN AGREEMENT
dated as of May 26, 2005
between
FLEET NATIONAL BANK, a Bank of America company,
as a Lender and Arranger
("Lender"),
THE BANK OF CHINA, NEW YORK BRANCH, as a Lender,
FLEET NATIONAL BANK, a Bank of America company,
as Administrative Agent
("Administrative Agent")
and
RD ABSECON ASSOCIATES, L.P. ("RD Absecon"),
▇▇ ▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, LIMITED PARTNERSHIP ("▇▇ ▇▇▇▇▇▇▇▇▇▇"),
▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.P. ("▇▇ ▇▇▇▇▇▇"),
RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP ("RD Village"),
and
RD WOONSOCKET ASSOCIATES LIMITED PARTNERSHIP ("RD Woonsocket"),
as Borrowers
(RD Absecon, ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, RD Village and RD Woonsocket,
individually and collectively, as the context requires, "Borrower")
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THIS REVOLVING LOAN AGREEMENT ("this Agreement") dated as of May ___,
2005 by and among RD ABSECON ASSOCIATES, L.P., a Delaware limited partnership
("RD Absecon"), ▇▇ ▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, LIMITED PARTNERSHIP, a Delaware
limited partnership ("▇▇ ▇▇▇▇▇▇▇▇▇▇"), ▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.P., a Delaware
limited partnership ("▇▇ ▇▇▇▇▇▇"), RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP, a
Delaware limited partnership ("RD Village") and RD WOONSOCKET ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership ("RD Woonsocket"; RD Absecon, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, RD Village and RD Woonsocket, collectively and
individually, as the context requires, "Borrower") and FLEET NATIONAL BANK, a
Bank of America company (in its individual capacity and not as Administrative
Agent, "Fleet"), THE BANK OF CHINA, NEW YORK BRANCH ("Bank of China"; Fleet,
Bank of China and each other lender who may become a Lender pursuant to Section
8.07, each, a "Lender" and collectively, "Lenders") and FLEET NATIONAL BANK, a
Bank of America company, as Administrative Agent for Lenders (together with its
successors in such capacity, "Administrative Agent").
Borrower desires that Lenders extend credit as provided herein, and
Lenders are prepared to extend such credit. Accordingly, Borrower,
Administrative Agent and each Lender agree as follows:
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, Borrower, Administrative Agent and Lenders hereby agree as
follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. The following terms, as used in this
Agreement, shall have the following meanings:
"Absecon/NJ Property" -- The fee interest in real property located at Whitehorse
Pike in Absecon, New Jersey owned by RD Absecon.
"Additional Costs" -- Has the meaning specified in Section 3.01.
"Additional Interest" -- Any and all sums that shall become due and payable by
Borrower under the Hedging Agreement.
"Additional Advance" -- Has the meaning set forth in Section 4.02 of this
Agreement.
"Administrative Agent" -- Has the meaning specified in the preamble.
"Administrative Agent's Counsel" -- ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Administrative Agent's Office" -- Administrative Agent's office located as set
forth on its signature page hereof, or such other address in the United
States as Administrative Agent may designate by notice to Borrower and
Lenders.
"Affiliate" -- With respect to any Person (the "first Person"), any other Person
(1) which directly or indirectly controls, or is controlled by, or is
under common control with the first Person or (2) 10% or more of the
beneficial interest in which is directly or indirectly owned or held by
the first Person. The term "control" means the possession, directly or
indirectly, of the power, alone, to direct or cause the direction of
the management and policies of a Person, whether through the ownership
of voting securities, by contract, or otherwise.
"Anchors" -- Shall mean, with respect to each Property, (i) American Stores
Properties, Inc., a wholly owned subsidiary of ▇▇▇▇▇▇▇▇▇'▇, Inc. (a/k/a
Acme) and Eckerd Corporation with respect to the Absecon/NJ Property,
(ii) HomeGoods, Inc., Marshalls of MA, Inc., The TJX Companies, Inc.
and OfficeMax North America, Inc. (f/k/a OfficeMax, Inc.) with respect
to the Bloomfield/MI Property, (iii) ▇▇▇▇▇ Enterprises, with respect to
the ▇▇▇▇▇▇/IL Property; and (iv) Sears, ▇▇▇▇▇▇▇ & Co., Shaws
Supermarkets, Inc., a wholly-owned subsidiary of ▇▇▇▇▇▇▇▇▇'▇, Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇ CVS, Inc. and Concord Buying Group Inc., with respect to
the Woonsocket/RI Property.
"Applicable Lending Office" -- For each Lender and for the portions of the
outstanding principal balance under its Note bearing interest at the
Prime Based Rate or LIBO Based Rate, as applicable, the lending office
of such Lender (or of an Affiliate of such Lender) designated as such
on its signature page hereof or in the applicable Assignment and
Assumption Agreement, or such other office of such Lender (or of an
Affiliate of such Lender) as such Lender may from time to time specify
to Administrative Agent and Borrower as the office by the portions of
the outstanding principal balance under its Note bearing interest at
the Prime Based Rate or LIBO Based Rate , as applicable, are to be made
and maintained.
"Applicable Margin" -- With respect to the Prime Based Rate, 0.45% per annum;
and with respect to the LIBO Based Rate, 1.30% per annum.
"Assignee" -- Has the meaning specified in Section 8.07.
"Assignment and Assumption Agreement" -- An Assignment and Assumption Agreement,
substantially in the form of EXHIBIT A, pursuant to which a Lender
assigns and an Assignee assumes rights and obligations in accordance
with Section 11.05.
"Authorization Letter" -- The letter in the form of EXHIBIT F.
"Bloomfield/MI Property" -- The fee interest in real property located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ in Bloomfield, Michigan owned by ▇▇ ▇▇▇▇▇▇▇▇▇▇.
2
"Business Day" -- Any day on which commercial banks are not authorized or
required to close in New York City; and, whenever such day relates to a
LIBOR Amount, an Interest Period with respect to a LIBOR Amount, or
notice with respect to a LIBOR Amount, any such day in which dealings
in Dollar deposits are also carried out in the London interbank market
and banks are also open for business in London.
"Code" -- The Internal Revenue Code of 1986.
"Contribution Agreement" -- That certain Subordination and Contribution
Agreement dated as of the date hereof by and among Administrative Agent
and Borrowers.
"Counterparty" -- Fleet National Bank, or any of its Affiliates, in their
capacity as a party to the Hedging Agreement, if any, and its
successors and assigns in such capacity.
"Default" -- Any event or circumstance which, with the giving of notice or the
passage of time, or both, would become an Event of Default.
"Default Rate" -- A rate per annum equal to (1) with respect to Prime Based
Loans, a variable rate 5% above the rate of interest then in effect
thereon and (2) with respect to LIBOR Loans, a fixed rate 5% above
rate(s) of interest in effect thereon at the time of Event of Default
until the end of the then current Interest Period therefor and,
thereafter, a variable rate 5% above the rate of interest for a Prime
Based Loan.
"Delinquency Amount"; "Delinquency Notice"; "Delinquent Lender" -- Have the
respective meanings specified in Section 7.16.
"DSC Test" -- Has the meaning set forth in Section 2.04 of this Agreement.
"Dollars" and "$" -- Lawful money of the United States of America.
"Electing Lender"; "Election Notice"; "Election Period" -- Have the respective
meanings specified in Section 7.16.
"Eligible Assignee" -- An entity which is (i) a commercial bank organized under
the Laws of the United States, or any State thereof, and having (x)
total assets in excess of $1,000,000,000 and (y) a combined capital and
surplus of at least $250,000,000; (ii) a commercial bank organized
under the laws of any other country which is a member of the
Organization of Economic Cooperation and Development ("OECD"), or a
political subdivision of any such country, and having (x) total assets
in excess of $1,000,000,000 and (y) a combined capital and surplus of
at least $250,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or
another country which is also a member of OECD; (iii) a life insurance
company organized under the Laws of any State of the United States, or
organized under the laws of any country and licensed as a life insurer
by any State within the United States and having admitted assets of at
least $1,000,000,000; or (iv) a nationally recognized investment
banking company, or an Affiliate thereof (other than any Person which
is directly or indirectly an Affiliate of Borrower or Guarantor, or of
any member or partner of Borrower or Guarantor) organized under the
Laws of any State of the United States, and licensed or qualified to
conduct such business under the Laws of any such State and having (1)
total assets of at least $1,000,000,000 and (2) a net worth of at least
$250,000,000.
3
"Employee Benefit Plan" -- Any employee benefit or other plan established or
maintained, or to which contributions have been made, by Borrower or
Guarantor.
"ERISA" -- The Employee Retirement Income Security Act of 1974, including the
rules and regulations promulgated thereunder.
"ERISA Affiliate" -- Any corporation which is a member of the same controlled
group of corporations (within the meaning of Section 414(b) of the
Code) as Borrower and/or Guarantor, or any trade or business which is
under common control (within the meaning of Section 414(c) of the Code)
with Borrower and/or Guarantor, or any organization which is required
to be treated as a single employer with Borrower and/or Guarantor under
Section 414(m) or 414(o) of the Code.
"Event of Default" -- Has the meaning given to such term in the Mortgage.
"Federal Funds Rate" -- For any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions as
published by the Federal Reserve Bank of New York for such day or, for
any day that is not a banking day in New York City, for the immediately
preceding banking day.
"Fiscal Year" -- The calendar year or such other annual period as Borrower and
Administrative Agent may mutually agree upon.
"Financial Statements" -- Statements of the assets, liabilities (direct or
contingent), income, expenses and cash flow of Borrower and Guarantor,
prepared in accordance with generally accepted accounting principles in
the United States as in effect from time to time and consistently
applied.
"Fronting Fee" -- Has the meaning set forth in Section 8.20 of this Agreement.
"GAAP" -- Generally accepted accounting principles in the United States as in
effect from time to time, consistently applied.
"Good Faith Contest" -- The contest of an item if (1) the item is diligently
contested in good faith, and, if appropriate, by proceedings timely
instituted, (2) adequate reserves are established with respect to the
contested item, (3) during the period of such contest, the enforcement
of any contested item is effectively stayed and (4) the failure to pay
or comply with the contested item during the period of the contest is
not likely to (x) result in a Material Adverse Change or (y) have an
adverse effect on the Mortgaged Property under any Mortgage or any part
thereof, or on Lenders' interest therein.
4
"Governmental Approvals" -- Any authorization, consent, approval, license,
permit, certification, or exemption of, registration or filing with or
report or notice to, any Governmental Authority.
"Governmental Authorities" -- The United States, the state in which the Property
is located and any political subdivision, agency, department,
commission, board, bureau or instrumentality of either of them,
including any local authorities, which exercises jurisdiction over
Borrower, Guarantor, the Property or the Improvements.
"Guarantor" -- Jointly and severally, Acadia Realty Limited Partnership, a
Delaware limited partnership and any other person(s) or entity(ies) who
may hereafter become a guarantor of any or all of Borrower's
obligations in respect of the Loan.
"Guaranty" -- The guaranty(ies) of all or part of Borrower's obligations, to be
executed by Guarantor.
"Hazardous Materials" -- Has the meaning given to such term in the Mortgage.
"Hedging Agreement" -- Any ISDA Master Agreement or other documentation with
respect to an interest rate hedging transaction entered into by and
between any Borrower, as any of the same may be amended, modified or
supplemented from time to time, including any and all "confirmations"
under any thereof.
"▇▇▇▇▇▇/IL Property" -- The fee interest in real property located at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ owned by ▇▇ ▇▇▇▇▇▇.
"Improvements" -- Shall mean, with respect to the indicated Property: (i) a one
story Neighborhood Shopping Center containing 105,093 square feet with
respect to the Absecon/NJ Property, (ii) a one story Community Shopping
Center containing 229,506 square feet with respect to the ▇▇ ▇▇▇▇▇▇▇▇▇▇
Property, (iii) a one story Neighborhood Shopping Center containing
99,042 square feet with respect to the ▇▇▇▇▇▇/IL Property, (iv) one
story Neighborhood Shopping Center containing 269,921 square feet with
respect to the Woonsocket/RI Property and (v) a two story, 578,706
n.r.s.f./600 unit apartment community with 1,158 surface parking spaces
with respect to the Village/NC Property.
"Indemnity" -- An agreement from Borrower and Guarantor or, if there is no
Guarantor, such other persons or entities as shall be satisfactory to
Lender, whereby, among other things, Lender is indemnified regarding
Hazardous Materials.
"Individual Loan Commitment" -- With respect to each Lender, the amount set
forth below opposite the name of such Lender (subject to change in
accordance with the terms of this Agreement).
5
Lender Individual Loan Commitment
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Fleet $32,500,000
Bank of China $32,500,000
Upon any reduction in the Total Loan Commitment, each Lender's Individual Loan
Commitment shall reduce by the Lender's Pro Rata Share of the reduction of the
Total Loan Commitment.
"Insolvency Event" -- Shall mean the occurrence of any of the Events of Default
described in clauses (d) through (h) of the Mortgage.
"Interest Period" -- The period during which interest at the LIBO Based Rate,
determined as provided in this Agreement, shall be applicable to the
LIBO Rate Request Amount in question, provided, however, that each such
period shall be either one (1), two (2), three (3) months (or, if
available, four (4), or six (6) months or such other periods as
Administrative Agent may make available from time to time), which shall
be measured from the date specified by Borrower in each LIBO Rate
Request for the commencement of the computation of interest at the LIBO
Based Rate, to the numerically corresponding day in the calendar month
in which such period terminates (or, if there be no numerical
correspondent in such month, or if the date selected by Borrower for
such commencement is the last Business Day of a calendar month, then
the last Business Day of the calendar month in which such period
terminates, or if the numerically corresponding day is not a Business
Day then the next succeeding Business Day, unless such next succeeding
Business Day enters a new calendar month, in which case such period
shall end on the next preceding Business Day) and in no event shall any
such period extend beyond the Maturity Date.
"Initial Advance" -- The first advance of Loan proceeds to be made hereunder.
"Law" -- Any federal, state or local law, statute, rule, regulation,
ordinance, order, decree, directive, requirement, code, notice of
violation or rule of common law, now or hereafter in effect, and in
each case as amended, and any judicial or administrative interpretation
thereof by a Governmental Authority or otherwise, including any
judicial or administrative order, determination, consent decree or
judgment.
"Lender"; "Lenders" -- Has the respective meanings specified in the preamble.
"Lender Reply Period" -- Has the meaning specified in Section 8.06.
"Lenders L/C Fee" -- Has the meaning set forth in Section 8.20 of this
Agreement.
"Letter of Credit" -- Has the meaning set forth in Section 8.20 of this
Agreement.
6
"LIBO Rate" -- The rate per annum (at Administrative Agent's option, rounded
up, if necessary, to the nearest 1/32 of 1%) that appears on Dow ▇▇▇▇▇
Page 3750 at approximately 11:00 a.m. (London time) on the date (the
"LIBOR Determination Date") two (2) Business Days prior to the first
day of the applicable Interest Period, for amounts comparable to the
LIBO Rate Request Amount for the same period of time as the Interest
Period selected by Borrower in the LIBO Rate Request; or, if such rate
does not appear on Dow ▇▇▇▇▇ Page 3750 as of approximately 11:00 a.m.
(London time) on the LIBOR Determination Date, the rate (at
Administrative Agent's option, rounded up, if necessary, to the nearest
1/32 of 1%) for deposits in Dollars for a period comparable to the
applicable Interest Period that appears on the Reuters Screen LIBO Page
as of approximately 11:00 a.m. (London time) on the LIBOR Determination
Date. If such rate does not appear on either Dow ▇▇▇▇▇ Page 3750 or on
the Reuters Screen LIBO Page as of approximately 11:00 a.m. (London
time) on the LIBOR Determination Date, the LIBO Rate for the Interest
Period will be determined on the basis of the offered rates for
deposits in Dollars for an amount comparable to the LIBO Rate Request
Amount for the same period of time as such Interest Period that are
offered by four (4) major banks in the London interbank market at
approximately 11:00 a.m. (London time) on the LIBOR Determination Date.
Administrative Agent will request that the principal London office of
each of the four (4) major banks provide a quotation of its Dollar
deposit offered rate. If at least two (2) such quotations are provided,
the LIBO Rate will be the arithmetic mean of the quotations. If fewer
than two (2) quotations are provided as requested, the LIBO Rate will
be determined on the basis of the rates quoted for loans in Dollars to
leading European banks for amounts comparable to such LIBO Rate Request
Amount for the same period of time as such Interest Period offered by
major banks in New York City at approximately 11:00 a.m. (New York
time) on the LIBOR Determination Date. In the event that Administrative
Agent is unable to obtain any such quotation as provided above, it will
be deemed that the LIBO Rate cannot be determined. For purposes of the
foregoing definition, "Dow ▇▇▇▇▇ Page 3750" means the display
designated as "Page 3750" on the Dow ▇▇▇▇▇ Markets Service (or such
other page as may replace Page 3750 on that service or such other
service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for Dollar deposits); and
"Reuters Screen LIBO Page" means the display designated as page "LIBO"
on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying
interbank rates from London in Dollars).
"LIBO Rate Request" -- Borrower's telephonic notice (to be promptly confirmed
in writing), to be received by Administrative Agent by 12 Noon (New
York time) three (3) Business Days prior to the date specified in the
LIBO Rate Request for the commencement of the Interest Period (which
specified date must be a Business Day), of (a) its intention to have
(i) all or any portion of the Principal Amount which is not then the
subject of an Interest Period (other than an Interest Period which is
terminating on the Business Day specified in the notice) and/or (ii)
all or any portion of any advance of proceeds of the Loan evidenced by
the Notes which is to be made on the Business Day specified in the
notice, bear interest at the LIBO Based Rate and (b) the Interest
Period desired by Borrower in respect of the amount specified.
7
"LIBO Rate Request Amount" -- The amount, to be specified by Borrower in each
LIBO Rate Request, which Borrower desires bear interest at the LIBO
Based Rate and which, at Administrative Agent's option, shall be an
integral multiple of $100,000.
"LIBOR Loan" -- All or any portion (as the context requires) of any Lender's
Loan which shall accrue interest at the LIBOR Based Rate.
"Loan" -- The loan in the Loan Amount made by Lender to Borrower under this
Agreement.
"Loan Allocation" -- Shall mean, with respect to the indicated Property: (i)
$12,060,000 for the Absecon/NJ Property, (ii) $16,730,000 for the
Bloomfield/MI Property, (iii) $7,450,000 for the ▇▇▇▇▇▇/IL Property,
(iv) $17,840,000 for the Woonsocket/RI Property and (v) $10,920,000 for
the Village/NC Property.
"Loan Amount" -- $65,000,000 (subject to change in accordance with the terms
of this Agreement).
"Loan Documents" -- This Agreement, the Notes, the Mortgages, the Indemnity,
the Authorization Letter, the Solvency Certificate, the Contribution
Agreement, Uniform Commercial Code financing statements in respect of
the Mortgaged Property and any other collateral given to Lender as
security for the Loan, and any other documents which evidence or secure
the Loan.
"Loan to Value Test" -- Has the meaning set forth in Section 2.03 of this
Agreement.
"Major Lease" -- Any lease for space in excess of 10,000 square feet of the
rentable area of the Improvements.
"Material Adverse Change" means either (1) a material adverse change in the
status of the business, results of operations, financial condition,
property or prospects of Borrower or (2) any event or occurrence of
whatever nature which is likely to (x) have a material adverse effect
on the ability of Borrower to perform its obligations under the Loan
Documents or (y) create, in the sole and absolute judgment (reasonably
exercised) of Lender, a material risk of sale or forfeiture of any of
the Mortgaged Property (other than an immaterial portion thereof) under
any Mortgage or otherwise materially impair any of the Mortgaged
Property under any Mortgage or Lenders' rights therein.
"Maturity Date" -- June 1, 2010.
"Mortgage" -- For each Property, the Mortgage (or Deed of Trust), Assignment of
Leases and Rents and Security Agreement in respect thereof, each dated
the date hereof, from the respective Mortgagor for the benefit of
Administrative Agent, as agent for Lenders, to secure the payment and
performance of Borrower's obligations hereunder, under the Notes and
otherwise in respect of the Loans.
8
"Mortgaged Property" means, for each Property, the Property, the Improvements
thereon and all other property constituting the "Mortgaged Property",
as said quoted term is defined in the applicable Mortgage.
"Multiemployer Plan" -- A Plan defined as such in Section 3(37) of ERISA to
which contributions have been made by Borrower or any ERISA Affiliate
and which is covered by Title IV of ERISA.
"Net Operating Income"
(a) all revenues from the ownership, use, occupancy, leasing
and operation of the Property during the period in question, determined
in accordance with GAAP (but adjusted to eliminate the effects of
straight-lining of rents and further adjusted to exclude extraordinary
and non-recurring sources of income), including all rental and other
payments, including, without limitation, base rent, additional rent,
promotional revenues, percentage rent and payments for common area
maintenance, taxes, insurance and operating expenses and proceeds of
rental loss or business interruption service, excluding tenant security
deposits collected but not applied to tenants' obligations, and
interest on such deposits;
minus
(b) all expenses in connection with the Property during such
period, determined in accordance with GAAP, including insurance
premiums, real estate taxes, promotional expenses, maintenance and
repair expenses, management fees and any other operational expenses,
all as determined in accordance with GAAP, but not including debt
service payable under the Loan.
"Non-Delinquent Lender" -- Each Lender other than the Delinquent Lender(s).
"Non-Excluded Taxes" -- Has the meaning specified in Section 8.14.
"Note"; "Notes" -- Have the respective meanings specified in Section 2.06.
"Obligations" -- Each and every obligation, covenant and agreement of Borrower,
now or hereafter existing, contained in this Agreement, and any of the
other Loan Documents, whether for principal, reimbursement obligations,
interest, fees, expenses, indemnities or otherwise, and any amendments
or supplements thereto, extensions or renewals thereof or replacements
therefor, including, but not limited to, all indebtedness, obligations
and liabilities of Borrower to Administrative Agent and any Lender now
existing or hereafter incurred under or arising out of or in connection
with the Notes, this Agreement, the other Loan Documents, and any
documents or instruments executed in connection therewith; in each case
whether direct or indirect, joint or several, absolute or contingent,
liquidated or unliquidated, now or hereafter existing, renewed or
restructured, whether or not from time to time decreased or
extinguished and later increased, created or incurred, and including
all indebtedness of Borrower, under any instrument now or hereafter
evidencing or securing any of the foregoing.
9
"Participant"; "Participation" -- Have the respective meanings specified in
Section 8.07.
"Payor" -- Has the meaning specified in Section 7.12.
"Pension Plan" -- Any employee pension benefit plan within the meaning of
Section 3(2) of ERISA with respect to which Borrower, Guarantor or any
ERISA Affiliate at any relevant time has liability or an obligation to
contribute.
"Person" -- An individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association,
joint venture or other entity of whatever nature.
"Plan" -- Any employee benefit or other plan established or maintained, or to
which contributions have been made, by Borrower or any ERISA Affiliate
and which is covered by Title IV of ERISA or to which Section 412 of
the Code applies.
"Premises Documents" -- Has the meaning given to such term in the Mortgage.
"Prime Based Loan" -- All or any portion (as the context requires) of a
Lender's Loan which shall accrue interest at a rate determined in
relation to the Prime Based Rate.
"Prime Based Rate" -- The Applicable Margin plus the greater of (i) the
Federal Funds Rate plus 1/2 of 1% per annum or (ii) the prime
commercial lending rate as announced from time to time by
Administrative Agent at Administrative Agent's Office (it being
understood that said "prime commercial lending rate" is a reference
rate and does not necessarily represent the lowest or best rate being
charged to customers), each change in said rates to be effective,
without notice or demand of any kind, as of the date of such change.
"Principal Amount" -- At any time, the aggregate outstanding principal amount of
the Notes.
"Property" means, individually and collectively, as the context requires, each
of the Absecon/NJ Property, the Bloomfield/MI Property, the ▇▇▇▇▇▇/IL
Property, the Village/NC Property and the Woonsocket/RI Property.
"Pro Rata Share" -- With respect to each Lender, the ratio of such Lender's
Individual Loan Commitment to the Loan Amount. As of the date hereof,
the Lenders' respective Pro Rata Shares are as follows:
10
Lender Pro Rata Share
------ --------------
Fleet 50%
Bank of China 50%
"Regulation D" and "Regulation U" -- Respectively, Regulation D and Regulation U
of the Board of Governors of the Federal Reserve System.
"Regulatory Change" -- With respect to any Lender and the charging and
collecting of interest at the LIBO Based Rate, any change after the
date hereof in federal, state or foreign laws or regulations (including
Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks
including such Lender under any federal, state or foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof, excluding any change the effect of which is
reflected in a change in the LIBO Based Rate.
"Release Price" -- Shall mean, with respect to the indicated Property: (i)
$13,880,000 for the Absecon/NJ Property, (ii) $19,250,000 for the
Bloomfield/MI Property, (iii) $8,566,000 for the ▇▇▇▇▇▇/IL Property,
(iv) $12,570,000 for the RD Village Property, and, (v) $20,528,000 for
the RD Woonsocket Property.
"Replacement Lender" -- Has the meaning set forth in Section 7.20 of this
Agreement.
"Required Lenders" -- At any time, those Non-Delinquent Lenders having Pro Rata
Shares aggregating more than 50%; provided, however, that during the
existence of an Event of Default, the "Required Lenders" shall be those
Non-Delinquent Lenders holding at least 66-2/3% of the then aggregate
unpaid principal amount of the Loans.
"Required Payment" -- Has the meaning specified in Section 7.12.
"Requisition" -- A written statement by or on behalf of Borrower, in form and
substance satisfactory to Administrative Agent, setting forth the
amount of the Loan advance requested in each instance and instructions
for the payment of the same, and certifying the purpose for which such
advance is to be used.
"Reserve Requirement" -- The rate at which reserves (including any marginal,
supplemental or emergency reserves) are actually required to be
maintained by any Lender or any Lender's respective Participants, if
any, under Regulation D against "Euro-Currency Liabilities", as such
quoted term is used in Regulation D. Without limiting the effect of the
foregoing, the Reserve Requirement shall reflect any other reserves
required to be maintained by any Lender or any Lender's respective
Participants, if any, by reason of any Regulatory Change against (i)
any category of liabilities which includes deposits by reference to
which the LIBO Based Rate is to be determined as provided in this
Agreement or (ii) any category of extensions of credit or other assets
which includes loans the interest rate on which is determined on the
basis of rates used in determining the LIBO Rate.
11
"Solvency Certificate" -- A certificate in the form of EXHIBIT G executed by
each of the Borrowers.
"Solvent" -- When used with respect to any Person, that the fair value of the
property of such Person, on a going concern basis, is greater than the
total amount of liabilities (including, without limitation, contingent
liabilities) of such Person.
"Title Insurer" -- The issuer(s), approved by Administrative Agent, of the
title insurance policy or policies insuring the Mortgage. "Total Loan
Commitment" -- An amount equal to the aggregate amount of all
Individual Loan Commitments.
"Treasury Rate" -- The yield rate (i) on the 10 year U.S. Treasury Security due
on or closest to the Maturity Date (as defined in the Note), as such
yield rate is reported in the Wall Street Journal on the second
Business Day preceding the date of calculation.
"Unrestricted Cash and Cash Equivalents" means the following assets of Guarantor
(and Guarantor's pro rata share thereof with respect to unconsolidated
joint ventures in which Guarantor has the power and authority to cause
distributions from such joint venture), in each case, not subject to
any lien, security interest or restriction: (i) cash, (ii) securities
issued or directly and fully guaranteed or insured by the United States
of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than six (6) months from
the date of acquisition, (iii) shares of money market funds invested in
the securities described in clause (ii) above and (iv) Dollar
denominated time deposits or certificates of deposit of any domestic
United States commercial bank whose long-term debt is rated at least A
by Standard & Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or A2 by ▇▇▇▇▇'▇ Investors Service, Inc. and having
capital and surplus in excess of $500,000,000.
"Village/NC Property" -- The fee interest in real property located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ in Winston-Salem, North Carolina owned by RD
Village.
"Woonsocket/RI Property" -- The fee interest in real property located at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ in Woonsocket, Rhode owned by RD Woonsocket.
Section 1.02. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP.
Section 1.03. Computation of Time Periods. Except as otherwise provided
herein, in this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and words "to" and "until" each means "to but excluding".
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Section 1.04. Rules of Construction. Except as expressly provided otherwise,
when used in this Agreement (i) "or" is not exclusive, (ii) "hereunder",
"herein", "hereof" and the like refer to this Agreement as a whole, (iii)
"Article", "Section", "Schedule" and "Exhibit" refer to Articles, Sections,
Schedules and Exhibits of this Agreement, (iv) terms defined in the singular
shall have a correlative meaning when used in the plural and vice versa, (v) a
reference to a Law includes any amendment, modification or supplement to, or
replacement of, such Law and (vi) a reference to a document shall mean such
document as the same may be amended, modified or supplemented from time to time
in accordance with its terms. The cover page and the Exhibits and Schedules, if
any, annexed hereto are incorporated as a part of this Agreement with the same
effect as if set forth in the body hereof. Any table of contents and all
captions and headings herein are for convenience only and shall not affect the
interpretation or construction hereof.
ARTICLE II
THE LOAN
Section 2.01. Generally. Subject to the terms and conditions of this
Agreement, each of the Lenders severally agrees to lend to Borrower in an amount
up to its Individual Loan Commitment pursuant to which the Lender shall from
time to time advance and re-advance to Borrower an amount equal to its Pro Rata
Share of the excess of the Total Loan Commitment over the sum of (1) all
previous advances of the Loans which remain unpaid and (2) the outstanding
amount of all Letters of Credit. Within the limits set forth herein, Borrower
may borrow from time to time under this Section 2.01 and prepay from time to
time pursuant to Section 2.13 (subject, however, to the restrictions on
prepayment set forth in said Section), and thereafter re-borrow pursuant to this
Section 2.01. The Loans may be outstanding as (1) Base Rate Loans, (2) LIBOR
Loans or (3) a combination of the foregoing, as Borrower shall elect and notify
Administrative Agent in accordance with Section 2.10. The LIBOR Loan and Base
Rate Loan of each Lender shall be maintained at such Lender's Applicable Lending
Office.
Section 2.02. Nature of Lenders' Obligations. The obligations of
Lenders under this Agreement are several, and no Lender shall be responsible for
the failure of any other Lender to make any advance of the Loan to be made by
such other Lender. However, the failure of any Lender to make any advance of the
Loan to be made by it hereunder on the date specified therefor shall not relieve
any other Lender of its obligation to make any advance of its portion of the
Loan specified hereby to be made on such date.
Section 2.03. Purpose. The Loan shall be made for the business purposes
of working capital, distributions to Borrower's parent company and repayment of
existing debt. Borrower covenants and agrees that in no event shall proceeds of
the Loan, or any part thereof, be used, directly or indirectly, for any other
purpose, for any illegal purpose or for the purpose, whether immediate,
incidental or ultimate, of buying or carrying "margin stock" within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System, or in
connection with any hostile acquisition or for any illegal purpose.
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Section 2.04. Advances. The Initial Advance shall be in the amount of
$12,000,000 and shall be made upon satisfaction of the conditions set forth in
Section 4.01. Subsequent advances shall be made no more frequently than once a
month thereafter, upon satisfaction of the conditions set forth in Section 4.02.
In no event shall Lenders be obligated to make an advance hereunder if (i) the
Principal Amount of the Loan following such advance (the "Post Advance Amount")
would exceed 65% of the appraised value of the Mortgaged Property (the "Loan to
Value Test") as determined by an independent appraisal conducted at Borrower's
expense by an appraiser selected by Administrative Agent, which appraisal shall
be conclusive as to value absent manifest error, provided, however, that
Borrower shall not be obligated to pay for more than one (1) appraisal per any
twelve (12) consecutive month period so long as no Event of Default exists or
(ii) if Net Operating Income is not 135% or more of debt service on the Initial
Advance or the Post Advance Amount, as the case may be (the "DSC Test"). For
purposes of determining compliance with the DSC Test, Net Operating Income shall
be calculated on a semi-annual basis using six months' actual figures and the
projected figures for the next succeeding six months and debt service shall be
calculated using an interest rate equal to the greater of (a) the actual
interest rate; (b) the Treasury Rate plus 200 basis points or (c) an interest
rate equal to 8.0% and a (25) year equal payment self liquidating amortization
schedule. For purposes of determining compliance with the Loan to Value Test, a
new appraisal shall not be required for each advance provided the appraisal
required in connection therewith shall not be more than twelve (12) months old
and any required reappraisals shall be made at Borrower's expense, subject to
the limitation set forth in clause (i) above.
Section 2.05. Procedure for Advance. Borrower shall submit to
Administrative Agent a request for the advance of proceeds of the Loan stating
the amount requested and the purpose for which such advance is to be used no
later than 10:00 a.m. (New York time) on the date five (5) Business Days, prior
to the date the advance is to be made. Administrative Agent, upon its receipt
and approval of the request for advance, will so notify all Lenders by
facsimile. Not later than 10:00 a.m. (New York time) on the date set for such
advance, each Lender shall, through its Applicable Lending Office and subject to
the conditions of this Agreement, make the amount to be advanced by it on such
day available to Administrative Agent, at Administrative Agent's Office and in
immediately available funds for the account of Borrower. The amount so received
by Administrative Agent shall, subject to the conditions of this Agreement, be
made available to Borrower, in immediately available funds, by Administrative
Agent's crediting one or more bank accounts of Borrower or any one or more of
them designated by Borrower in its request for advance. Each Advance made
pursuant to this Agreement shall be in an amount at least equal to $1,000,000
and in integral multiples of $100,000.
Section 2.06. Notes. The Loan shall be evidenced by notes of Borrower
in the form of EXHIBIT D, duly completed and executed by Borrower (one for each
Lender in an amount equal to such Lender's Individual Loan Commitment, payable
for the account of such Lender's Applicable Lending Office), in an aggregate
principal amount equal to the Loan Amount (such notes, as the same may hereafter
be amended, modified, extended, severed, assigned, substituted, renewed or
restated from time to time (including, without limitation, any substitute notes
pursuant to Section 8.07), each, a "Note" and collectively, the "Notes"). The
Notes shall mature, and all outstanding principal and other sums thereunder
shall be paid in full, on the Maturity Date, as the same may be accelerated or
extended.
14
Each Lender is hereby authorized by Borrower to endorse on the schedule
attached to the Note held by it, the amount of each advance and each payment of
principal received by such Lender for the account of its Applicable Lending
Office(s) on account of its Loan, which endorsement shall, in the absence of
manifest error, be conclusive as to the outstanding balance of the Loan made by
such Lender. The failure by any Lender to make such notations with respect to
its Loans or each advance or payment shall not limit or otherwise affect the
obligations of Borrower under this Agreement or the Notes.
In case of any loss, theft, destruction or mutilation of any Lender's
Note, Borrower shall, upon its receipt of an affidavit of an officer of such
Lender as to such loss, theft, destruction or mutilation and an appropriate
indemnification, execute and deliver a replacement Note to such Lender in the
same principal amount and otherwise of like tenor as the lost, stolen, destroyed
or mutilated Note.
Section 2.07. Payments and Distributions; Certain Consequences of
Delinquent Lender Status. Borrower shall make each payment under this Agreement
and under the Notes not later than 11:00 a.m. (New York time) on the date when
due to Administrative Agent at Administrative Agent's Office in immediately
available funds. Administrative Agent will thereafter, on the day of its receipt
of each such payment, cause to be distributed to each Lender (i) such Lender's
appropriate share (based upon the respective outstanding principal amounts of
the Notes and the respective rates of interest thereunder) of the payments of
principal and interest, and its appropriate share of the payments of other sums,
in like funds for the account of such Lender's Applicable Lending Office.
Payments by Borrower hereunder or under the Notes or other Loan Documents shall
be made without setoff or counterclaim.
Except to the extent otherwise provided in this Agreement, whenever any
payment to be made under this Agreement or under the Notes is due on any day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of the payment of interest and, if applicable, fees, as the case may
be.
Notwithstanding the foregoing provisions of this Section, (i)
Administrative Agent shall make no payment to a Delinquent Lender until the
Non-Delinquent Lenders have been paid in full all outstanding principal, accrued
and unpaid interest and any other sums owing to them under the Loan Documents,
it being understood that payments of interest on account of the outstanding
principal amount of the Note held by the Delinquent Lender shall be held by
Administrative Agent in a non-interest bearing account and not distributed to
the Delinquent Lender until such time as all principal, interest and other sums
due to the Non-Delinquent Lenders have been paid in full; (ii) any payments
(other than interest, as provided in clause (i) above) which would otherwise be
due a Delinquent Lender shall be distributed to the Non-Delinquent Lenders until
15
such time as all principal, interest and other sums due to the Non-Delinquent
Lenders have been paid in full (except that any such amounts otherwise due a
Delinquent Lender received by Administrative Agent during an Election Period
shall be retained by Administrative Agent until the expiration of the Election
Period and either paid to the Delinquent Lender, if the delinquency is cured, or
paid to the Non-Delinquent Lenders, if the delinquency is not cured); and (iii)
Administrative Agent shall deduct, from amounts due (or, in the case of a
Delinquent Lender, amounts that would otherwise be payable to such Delinquent
Lender being held by Administrative Agent pursuant to clause (i) above) a Lender
in default under its obligations under Section 7.05 or the reimbursement
provisions of this Section 2.07 regarding interpleader actions, the amount owing
by such Lender pursuant to said Section 7.05 or the reimbursement provisions of
this Section 2.07 regarding interpleader actions and pay the amount so deducted
to itself, the other Lenders, or such other party as is entitled to such amount,
as applicable.
If, following such time as all amounts owing under the Loan to the
Non-Delinquent Lenders and Administrative Agent have been paid in full,
Administrative Agent is holding funds in respect of amounts payable to the
Delinquent Lender as provided in the third paragraph of this Section,
Administrative Agent shall file an interpleader action in New York State Supreme
Court, New York County and shall deposit the funds so held (less a sum equal to
Administrative Agent's reasonable fees and expenses in connection with said
interpleader action and deposit) with said court and Administrative Agent shall
thereupon be relieved of responsibility to any party with respect to the funds
deposited. Borrower and each Delinquent Lender hereby jointly and severally
agree to reimburse Administrative Agent for all costs and expenses that
Administrative Agent may incur in connection with the foregoing interpleader
action.
Except as provided above in this Section and in Section 7.16, each
Lender's interest in the Loan shall be of equal priority with the interest of
each other Lender.
Section 2.08. Interest. Borrower shall have the option, subject to the
terms and conditions set forth in this Agreement, of paying interest on the
Principal Amount or portions thereof at the Prime Based Rate or the LIBO Based
Rate. If Borrower desires the application of the LIBO Based Rate, it shall
submit a LIBO Rate Request to Administrative Agent, which LIBO Rate Request
shall be irrevocable, subject to Borrower's right to convert the rate of
interest payable under the Notes with respect to any LIBOR Amount from the LIBO
Based Rate to the Prime Based Rate as provided in Section 2.10. Administrative
Agent shall, on the day of its receipt of the LIBO Rate Request from Borrower,
notify each Lender by facsimile of the specified LIBOR Amount and the amount of
the Lender's portion thereof, the Interest Period and date of commencement
thereof, and the interest rate applicable to such LIBOR Amount. Each LIBO Rate
Request shall be applicable to the Notes in accordance with the Lenders'
respective Pro Rata Shares, so that, barring a conversion or suspension of the
LIBO Based Rate by one or more, but not all, Lenders, pursuant to Article III,
the outstanding principal amounts of each of the Notes shall contain segments
bearing interest at the Prime Based Rate and/or LIBO Based Rate(s) under
particular Interest Period(s), each of which segments shall correspond to a
proportional segment of the outstanding principal amount of every other Note. In
the event that Borrower fails to submit a LIBO Rate Request with respect to a
LIBOR Amount not later than 12 Noon (New York time) three (3) Business Days
prior to the last day of the relevant Interest Period, the LIBOR Amount in
question shall bear interest, commencing at the end of such Interest Period, at
the Prime Based Rate for a one (1) month Interest Period.
16
Interest shall be computed on an actual/360-day basis (i.e., interest
for each day during which any portion of the Principal Amount is bearing
interest at a particular interest rate per annum shall be computed at such rate
divided by 360).
Borrower shall pay interest on the Principal Amount to Administrative
Agent for the account of Lenders. Interest on the Principal Amount shall be
payable, in arrears, monthly on the first day of the first month following the
Initial Advance and on the first day of each month thereafter until the Notes
are repaid in full.
Section 2.09. Limitation on Number of Interest Periods. Borrower shall
not have the right to have more than five (5) Interest Periods, in the
aggregate, in respect of the Loan in effect at any one time, whether or not any
portion of the Principal Amount is then bearing interest at the Prime Based
Rate.
Section 2.10. Conversions of Interest Rate. Provided there exists no
Event of Default, Borrower shall have the right to convert, from time to time,
the rate of interest payable under the Notes with respect to any portion of the
Principal Amount to the LIBO Based Rate or the Prime Based Rate, subject to the
terms of this Agreement (including, without limitation, the payment of all
amounts due in connection with any such conversion from the LIBO Based Rate on a
date other than the last day of an applicable Interest Period) and provided
that, in the case of a conversion from the LIBO Based Rate, the entire LIBOR
Amount is the subject of the conversion. Conversions shall be accomplished (i)
in the case of a conversion from the Prime Based Rate to the LIBO Based Rate, by
Borrower's submission of a LIBO Rate Request in accordance with Section 2.08 or
(ii) in the case of a conversion from the LIBO Based Rate to the Prime Based
Rate, by Borrower's request to Administrative Agent by telephone (to be promptly
confirmed in writing), to be received by Administrative Agent at least three (3)
Business Days prior to the date specified for such conversion, specifying the
LIBOR Amount with respect to which the interest rate is to be converted and the
date of the conversion. With respect to any portion of the Principal Amount
subject to the LIBO Based Rate, Borrower shall not have the right to convert
from one Interest Period to another other than the last day of an applicable
Interest Period. On the date of its receipt of such request, Administrative
Agent shall notify each Lender thereof either by telephone or by facsimile.
Section 2.11. Inapplicability of LIBO Based Rate. Any portion of the
Principal Amount to which the LIBO Based Rate is not or cannot pursuant to the
terms of this Agreement be applicable shall bear interest at the Prime Based
Rate. Upon the occurrence of an Event of Default, the entire Principal Amount
shall, at the option of the Required Lenders, immediately and without notice to
Borrower, bear interest at the Prime Based Rate. In addition, following the
occurrence of an Event of Default, Borrower shall have no right to submit a LIBO
Rate Request with respect to any LIBOR Amount for which the current Interest
Period is expiring. The foregoing provisions shall not be construed as a waiver
by Lenders of their right to pursue any other remedies available to them under
the Mortgage or any other Loan Document nor shall they be construed to limit in
any way the application of the Default Rate as provided in the Mortgage.
17
Section 2.12. Late Payment Premium. Borrower shall pay to
Administrative Agent for the account of Lenders a late payment premium in the
amount of 5% of any payments of principal or interest under the Loan made more
than ten (10) days after the due date thereof, which late payment premium shall
be due with any such late payment.
Section 2.13. Voluntary Prepayments. Borrower may, upon at least five
(5) Business Days' notice (which notice shall be irrevocable) to Administrative
Agent, prepay the Principal Amount, in whole or part, without premium or
penalty; provided, however, that (i) any partial prepayment under this Section
shall be in a principal amount of not less than $1,000,000 and an integral
multiple of $100,000, (ii) prepayment of a LIBOR Amount other than on the last
day of the applicable Interest Period shall be subject to the provisions of
Section 3.03 and (iii) each prepayment under this Section shall include all
interest accrued on the amount of principal prepaid (and all late charges and
other sums that may be payable) through the date of prepayment. Amounts prepaid
may not be reborrowed.
Section 2.14. Annual Commitment Reduction/Required Amortization.
Commencing on the first day of June, 2006 and on the first day of each April
thereafter until the Maturity Date both the Loan Amount and the Total Loan
Commitment shall reduce by the amount set forth on Schedule A attached hereto
and, to the extent the Loan Amount as so reduced would exceed the Principal
Amount, Borrower shall, on the date of reduction make a mandatory principal
payment in the amount of such excess such that, at no time, shall the Principal
Amount exceed the Loan Amount as reduced from time to time. After any release of
a Property, in accordance with Section 8.18 or otherwise, Administrative Agent
shall recalculate the required annual amortization payments due hereunder in
accordance with a constant annual payment mortgage schedule based on the
Principal Amount at such time and an assumed interest rate of 8% per annum,
which would fully amortize over a term equal to (x) twenty-five (25) years less
(y) the number of full twelve (12) month periods elapsed since the date hereof.
Administrative Agent shall provide Borrower with a schedule of such recalculated
amortization payment schedule upon request and such schedule shall be final and
binding upon Borrower absent manifest error.
Section 2.15. Nature of Lenders' Obligations; Borrower's Rights and
Obligations in Event a Lender Fails to Make an Advance. The obligations of
Lenders under this Agreement are several, and no Lender shall be responsible for
the failure of any other Lender to fund the portion required to be funded by
such other Lender of an advance of the Loan.
18
ARTICLE III
YIELD MAINTENANCE ETC.
Section 3.01. Additional Costs and Other Effects of Regulatory Changes;
Taxes. Borrower shall pay directly to a Lender, promptly upon demand, such
amounts as are necessary to compensate such Lender for Additional Costs
resulting from any Regulatory Change which (i) subjects such Lender to any tax,
duty or other charge with respect to the Loan or its Note, or changes the basis
of taxation of any amounts payable to such Lender under the Loan or its Note
(other than taxes imposed on the overall net income of such Lender or of its
Applicable Lending Office by the jurisdiction in which such Lender's principal
office or such Applicable Lending Office is located), (ii) imposes, modifies or
deems applicable any reserve, special deposit or similar requirements relating
to any extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender, (iii) imposes on such Lender or, in the case of
LIBOR Amounts, on the London interbank market, any other condition affecting the
Loan or its Note, or any of such extensions of credit or liabilities or (iv)
imposes any capital adequacy requirements on such Lender by virtue of the Loan
or the Notes. Such Lender will notify Borrower (with a copy to Administrative
Agent) of any event occurring after the date hereof which would entitle it to
compensation pursuant to this paragraph as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation, and will
designate a different Applicable Lending Office for those portions of the Loan
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in such Lender's sole opinion, be
disadvantageous to it, provided that such Lender shall have no obligation to so
designate an Applicable Lending Office located in the United States.
Without limiting the effect of the immediately preceding paragraph, in
the event that, by reason of any Regulatory Change, (i) a Lender incurs
Additional Costs based on or measured by the excess above a specified level of
the amount of (1) a category of deposits or other liabilities of such Lender
which includes deposits by reference to which the LIBO Rate is determined as
provided in this Agreement and/or (2) a category of extensions of credit or
other assets of such Lender which includes loans the interest on which is
determined on the basis of rates referred to in the definition of "LIBO Rate" in
Section 1.01, (ii) a Lender becomes subject to restrictions on the amount of
such a category of liabilities or assets which it may hold or (iii) it shall be
unlawful or impossible for a Lender to make or maintain its Pro Rata Share of
the Loan (or any portion thereof) at the LIBO Based Rate, then such Lender's
obligation to make or maintain its Pro Rata Share of the Loan (or any portion
thereof) at the LIBO Based Rate (and Borrower's right to request the same) shall
be suspended and such Lender shall give notice thereof to Borrower (with a copy
to Administrative Agent) and, upon the giving of such notice, interest payable
on the affected Note shall be converted to the Prime Based Rate, unless such
Lender may lawfully continue to maintain its Pro Rata Share of the Loan (or any
portion thereof) then bearing interest at the LIBO Based Rate to the end of the
current Interest Period(s), at which time the interest rate on the affected Note
shall convert to the Prime Based Rate. If subsequent to any conversion to the
Prime Based Rate as provided above such Lender determines that such Regulatory
Change has ceased to be in effect, such Lender will so notify Borrower (with a
copy to Administrative Agent), and Borrower may convert the rate of interest
payable under the affected Note with respect to those portions of the Principal
Amount bearing interest at the Prime Based Rate to the LIBO Based Rate by
submitting a LIBO Rate Request in respect thereof and otherwise complying with
the provisions of this Agreement with respect thereto.
19
Determinations by each Lender of the existence or effect of any
Regulatory Change on its costs of making or maintaining its Pro Rate Share of
the Loan, or portions thereof, at the LIBO Based Rate, or on amounts receivable
by it in respect thereof, and of the additional amounts required to compensate
such Lender in respect of Additional Costs, shall be conclusive, so long as made
on a reasonable basis.
Section 3.02. Limitations on Availability of LIBO Based Rate. Anything
herein to the contrary notwithstanding, if, at the time of or prior to the
determination of the LIBO Based Rate in respect of any LIBO Rate Request Amount
as provided in this Agreement, (i) Administrative Agent determines (which
determination shall be conclusive, so long as made on a reasonable basis) that
by reason of circumstances affecting the London interbank market generally,
adequate and fair means do not or will not exist for determining the LIBO Rate
applicable to an Interest Period or (ii) a Lender determines (which
determination shall be conclusive, so long as made on a reasonable basis) that
the LIBO Rate will not accurately reflect the cost to such Lender of making or
maintaining its Pro Rata Share of the Loan (or any portion thereof) at the LIBO
Based Rate, then Administrative Agent, in the case of the circumstances
described in clause (i) above, or such Lender, in the case of the circumstances
described in clause (ii) above, shall give Borrower prompt notice thereof (with
a copy to Administrative Agent in the case of the notice from such Lender), and
the LIBO Rate Request Amount in question, in the case of the circumstances
described in clause (i) above, or such Lender's portion thereof, in the case of
the circumstances described in clause (ii) above, shall bear interest, or
continue to bear interest, as the case may be, at the Prime Based Rate. If at
any time subsequent to Administrative Agent's or such Lender's giving of such
notice, Administrative Agent or such Lender, as the case may be, determines that
because of a change in circumstances the LIBO Based Rate is again available to
Borrower, Administrative Agent or such Lender, as the case may be, shall so
notify Borrower (with a copy to Administrative Agent, in the case of the notice
from such Lender) and Borrower may convert the rate of interest payable under
the Notes or such Lender's Note, as the case may be, from the Prime Based Rate
to the LIBO Based Rate by submitting a LIBO Rate Request in respect thereof and
otherwise complying with the provisions of this Agreement with respect thereto.
Section 3.03. Certain Compensation. Borrower shall pay directly to a
Lender, immediately upon request and notwithstanding contrary provisions
contained in the Mortgage or other Loan Documents, such amounts as shall, in the
judgment of such Lender (which shall be conclusive so long as made on a
reasonable basis), compensate it for any loss, cost or expense incurred by it as
a result of (i) any payment or prepayment (under any circumstances whatsoever,
whether voluntary or involuntary) of any portion of the Principal Amount bearing
interest at the LIBO Based Rate on a date other than the last day of an
applicable Interest Period, (ii) the conversion (for any reason whatsoever,
whether voluntary or involuntary) of the rate of interest payable under such
Lender's Note from the LIBO Based Rate to the Prime Based Rate with respect to
any portion of the Principal Amount then bearing interest at the LIBO Based Rate
20
on a date other than the last day of an applicable Interest Period, (iii) the
failure of all or a portion of an advance of the Loan which was to have borne
interest at the LIBO Based Rate pursuant to a LIBO Rate Request to be made, (iv)
any failure by Borrower to prepay any portion of the Principal Amount bearing
interest at the LIBO Based Rate on the date specified in Borrower's notice of
prepayment or (v) the failure of Borrower to borrow, continue or convert in
accordance with a LIBO Rate Request submitted by it, which amounts shall
include, without limitation, an amount equal the Present Value (determined as
hereinafter provided) of the dollar amount which is obtained by multiplying the
number of days from the date of the occurrence to the last day of the applicable
Interest Period by a number which is calculated by (i) multiplying the amount
prepaid, converted, not advanced, not prepaid or not borrowed, as the case may
be, by the excess of the LIBO Based Rate applicable thereto over the current
rate for United States Treasury securities (bills on a discounted basis shall be
converted to a bond equivalent) with a maturity date closest to the last day of
the applicable Interest Period and (ii) dividing the product thereof by 360. For
purposes of this Section, Present Value shall be determined by using the number
of days during the period from the date of occurrence to and including the last
day of the applicable Interest Period and using the above-referenced United
States Treasury security rate. A determination by a Lender as to the amounts
payable to it pursuant to this Section shall be conclusive absent manifest
error.
Section 3.04. "Lender" to Include Participants. For purposes of this
Article III and of the definition of "Additional Costs" in Section 1.01, the
term "Lender" shall, at each Lender's option, be deemed to include such Lender's
present and future Participants in the Loan to the extent of each such
Participant's actual Additional Costs or other losses, costs or expenses payable
pursuant to this Article III.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Loan. Lenders shall not be
obligated to make the Initial Advance until the following conditions shall have
been satisfied:
(a) There shall exist no Default or Event of Default, and no
Default or Event of Default would result from the making of the Loan;
(b) The representations and warranties made to Administrative
Agent or Lenders herein, in the other Loan Documents and in any other
document, certificate or statement executed or delivered to
Administrative Agent or Lenders in connection with the Loan shall be
true and correct on and as of the date of the advance of the Loan with
the same effect as if made on such date;
(c) The Improvements shall not have been materially injured or
damaged by fire or other casualty; and
21
(d) Lenders shall have received and approved each of the
following:
(1) Loan Fees and Expenses. (i) A non-refundable
facility fee in respect of this Loan (without credit for any
amounts paid under existing credit facilities refinanced
hereby) in the amount of $325,000, to be retained by Lenders
whether or not any advances are made hereunder and (ii) all
fees and expenses incurred by Administrative Agent (including,
without limitation, the reasonable fees and expenses of
Administrative Agent's Counsel, Lenders' environmental and
insurance consultants, and the preparer of the appraisal
required by paragraph (4) below);
(2) Loan Documents. This Agreement and each of the other
Loan Documents, duly executed by the parties thereto, and,
where applicable, duly acknowledged and in proper form for
recording or filing, as the case may be, and all necessary or
desirable recordings and filings shall have been duly made;
(3) Financial Statements. Current Financial Statements
and such other financial data (including, without limitation,
current financial statements of tenants under leases in
respect of the Mortgaged Property and of parties to any of the
Premises Documents, and of the guarantor(s), if any, of any
such tenants or parties) as Administrative Agent shall
require;
(4) Appraisal. An independent M.A.I. appraisal of the
Property and Improvements complying in all respects with the
standards for real estate appraisals established pursuant to
the Financial Institutions Reform, Recovery, and Enforcement
Act of 1989;
(5) Insurance Policies. The policies of insurance
required by the Mortgage, together with evidence of the
payment of the premiums therefor;
(6) Hazardous Materials Report/Reliance Letter. A
detailed report by a properly qualified engineer, which shall
include, inter alia, a certification that such engineer has
obtained and examined a list of prior owners, tenants and
other users of all or any portion of the Property or any
improvements thereon, and has made an on-site physical
examination of the Property, and a visual observation of the
surrounding areas, and has found no evidence of past or
present Hazardous Materials activities or the presence of
Hazardous Materials, together with, if required by
Administrative Agent, a "reliance letter" addressed to
Administrative Agent with respect to such report;
22
(7) Title Policy. A paid title insurance policy, in the
amount of the Loan Allocation for each property in ALTA
10-17-92 or other form approved by Administrative Agent's
Counsel with such endorsements as shall be reasonably
requested by Administrative Agent's Counsel (including
"tie-in" endorsements aggregating liability under such
policies to the extent permitted by Law), issued by the Title
Insurer which shall insure the Mortgage to be a valid lien on
Borrower's interest in the premises free and clear of all
defects and encumbrances except those previously received and
approved by Administrative Agent's Counsel, and shall contain
(i) full coverage against mechanics' liens (filed and
inchoate), (ii) a reference to the survey but no survey
exceptions except those theretofore approved by Administrative
Agent's Counsel, (iii) such affirmative insurance and
endorsements as Administrative Agent's Counsel may require,
and (iv) if any such policy is dated earlier than the date of
the disbursement of the Loan, an endorsement to such policy,
in form approved by Administrative Agent's Counsel, redating
the policy and setting forth no additional exceptions except
those approved by Administrative Agent's Counsel; and shall be
accompanied by such reinsurance agreements between the Title
Insurer and title companies approved by Lender, in ALTA 1994
facultative form, as Lender may require;
(8) Survey. A current ALTA/ACSM, as-built survey of the
Property, certified to Lender and the Title Insurer showing
(i) the location of the perimeter of the Property by courses
and distances, (ii) all easements, rights-of-way, and utility
lines referred to in the title policy required by this
Agreement or which actually service or cross the Property
(with instrument, book and page number indicated), (iii) the
lines of the streets abutting the Property and the width
thereof, and any established building lines (and that such
roads have been dedicated for public use and are completed and
have been accepted by all required Governmental Authorities),
(iv) any encroachments and the extent thereof upon the
Property, (v) locations of all portions (with the acreage
thereof also identified) of the Property, if any, which are
located in an area designated as a "flood prone area" as
defined by U.S. Department of Housing and Urban Development
pursuant to the Flood Disaster Protection Act of 1973 and (vi)
the Improvements, and the relationship thereof by distances to
the perimeter of the Property, established building, setback
and street lines and (vi) if the Property is described as
being on a filed map, a legend relating the survey to said
map;
(9) Leases and Premises Documents. Certified copies of
all leases in respect of the Mortgaged Property, accompanied
by, in the case of Anchors and any other leases specified by
Administrative Agent, estoppel certificates from the tenants
thereunder and executed notice-of-assignment letters in the
form of EXHIBIT B in respect thereof; executed subordination
and attornment agreements, in Administrative Agent's usual
form, in respect of such leases as Administrative Agent may
require; a certified copy of the standard form of lease or
contract of sale, as the case may be, Borrower will use in
connection with the leasing of space in the Improvements or
the sale of portions of the Property; certified copies of all
Premises Documents, together with estoppel certificates from
the parties thereto and a certified current rent roll for the
Improvements;
23
(10) Requisition. A Requisition for the Initial Advance,
(11) Counsel Opinions. Opinions of Borrower's counsel
and local counsel (and, if required by Lender, of a local
counsel selected by Lender or Administrative Agent's Counsel)
to the effects set forth on EXHIBIT C;
(12) Organizational Documents. If Borrower, the
mortgagor or grantor under any Mortgage (if different from
Borrower), Guarantor or any general partner or member of any
of them is a corporation, current copies of the following
documents with respect to each (unless otherwise indicated):
(i) a good-standing certificate from the
jurisdiction of its incorporation and, as to Borrower
and the mortgagor or grantor under the Mortgage only,
from the jurisdiction in which the Property is located,
(ii) a resolution, certified by the corporate
secretary, of the shareholders or directors of the
corporation authorizing the consummation of the
transactions contemplated hereby and the execution,
delivery and performance of the Loan Documents and any
other documents to be executed, delivered or performed
by said corporation (including any substitute or
replacement Notes to be executed and delivered pursuant
to the terms hereof), and
(iii) a certificate of the corporate secretary as
to the incumbency of the officers executing any of the
documents required hereby,
and, if Borrower, the mortgagor or grantor under the Mortgage
(if different from Borrower), Guarantor or any general partner
or member of any of them is a partnership, venture, limited
liability company or trust:
(iv) the entity's organizational agreement and all
amendments and attachments thereto, certified by a
general partner, venturer, member or trustee to be true
and complete,
(v) any certificates filed or required to be filed
by the entity in the jurisdictions of its formation and
where the Property is located in order for it to do
business in those jurisdictions, and
(vi) evidence of the authorization of the
consummation of the transactions contemplated hereby and
the execution, delivery and performance of the Loan
Documents and any other documents to be executed,
delivered or performed by said entity (including any
substitute or replacement notes to be executed and
delivered pursuant to the terms hereof), and including
any required consents by partners, venturers, members,
trustees or beneficiaries;
24
(13) Management and Leasing Contracts. Copies, certified
to be true and complete, of all existing contracts providing
for the management, maintenance, operation or leasing of the
Property and Improvements, together with, in each case, such
collateral assignments or "will-serve" letters as
Administrative Agent may require;
(14) Permits and Approvals. Copies of the certificate(s)
of occupancy for the Improvements and of any and all other
authorizations (including plot plan and subdivision approvals,
zoning variances, water, sewer, building and other permits)
required by Governmental Authorities or otherwise necessary
for the use, occupancy and operation of the Property and/or
Improvements for their intended purposes in accordance with
all applicable Laws;
(15) Intentionally Omitted;
(16) Chattel Searches. UCC searches against Borrower or
other owner of the Mortgaged Property and advice from the
Title Insurer to the effect that searches of proper public
records disclose no leases of personalty or financing
statements filed or recorded against the Mortgaged Property,
Borrower or other owner of any Mortgaged Property;
(17) Intentionally Omitted; and
(18) Additional Documentation. Such other approvals,
opinions or documents as Lender may reasonably request
including, but not limited to, (i) a current certified rent
roll for the Mortgaged Property and tenant estoppel letters
for all Anchors, (ii) ground lessor estoppel certificates from
the ground lessor with respect to any ground leases encumbered
by the Mortgage and (iii) current financial statements of
Guarantor showing a minimum net worth of $100,000,000 (the
"Net Worth Requirement") and a minimum Unrestricted Cash and
Cash Equivalents of $10,000,000 (the "Liquidity Requirement").
Section 4.02. Conditions to Advances After the Initial Advance. In
addition to the Initial Advance, an amount of Loan proceeds (each such advance,
an "Additional Advance") shall be made available to Borrower subject to the
satisfaction of the following conditions:
(a) Subject to the limitations set forth in Section 2.04 and
Section 4.02(h) with respect to any Additional Advance), the amount of
each Additional Advance subsequent to the Initial Advance shall be in
the minimum amount of $100,000 (unless less than said amount is
available for disbursement pursuant to the terms hereof at the time of
such Additional Advance, in which case the amount of such subsequent
advance shall be equal to such remaining availability).
25
(b) All conditions of Section 4.01 shall have been and remain
satisfied as of the date of such advances;
(c) There shall exist no Default or Event of Default;
(d) The representations and warranties made to Administrative
Agent and Lenders herein, in the other Loan Documents and in any other
document, certificate or statement executed or delivered to
Administrative Agent or Lenders in connection with the Loan shall be
true and correct on and as of the date of the advance with the same
effect as if made on such date (except for the updated rent roll);
(e) Lender shall have received a Requisition, and, if
required, a title continuation report;
(f) There shall have occurred no material adverse change in
the condition or value of the "Mortgaged Property", as defined in the
Mortgage;
(g) Mortgagor shall furnish Administrative Agent with a
statement, duly acknowledged, of the amount due whether for principal
or interest, on the Loan and whether any offsets, counterclaims or
defenses exist against the indebtedness secured hereby; and
(h) The aggregate outstanding proceeds of the Loan, including
the amount of the advance being requested, shall not exceed the amount
necessary to satisfy the Loan to Value Test and the DSC Test for
Additional Advances.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower and Guarantor represent and warrant to Administrative Agent
and Lenders that:
Section 5.01. Due Formation, Power and Authority. If it, the mortgagor
or grantor under the Mortgage (if different from Borrower), Guarantor or any
general partner or member of any of them is a corporation, partnership, venture,
limited liability company or trust, each such entity is duly organized, validly
existing and in good standing under the Laws of the jurisdiction of its
formation, is qualified to do business (if required) and is in good standing in
the jurisdiction in which the Property is located, and has full power and
authority to consummate the transactions contemplated hereby and to execute,
deliver and perform this Agreement and any other Loan Document to which it is a
party.
26
Section 5.02. Legally Enforceable Agreements. Each Loan Document to
which Borrower or Guarantor is a party is a legal, valid and binding obligation
of such party, enforceable against Borrower or Guarantor, as the case may be, in
accordance with its terms, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency and other similar Laws affecting
creditors' rights generally.
Section 5.03. Financial Statements. Financial Statements have been
heretofore delivered to Lenders which are true, correct and current in all
respects and which fairly present the respective financial conditions of the
subjects thereof as of the respective dates thereof; no material adverse change
has occurred in the financial conditions reflected therein since the respective
dates thereof and no borrowings (other than the Loan) which might give rise to a
lien or claim against the Mortgaged Property or proceeds of the Loan have been
made by Borrower or others since the dates thereof.
Section 5.04. Compliance With Laws; Payment of Taxes. Borrower and
Guarantor are in compliance with, and the transactions contemplated hereby and
by the other Loan Documents do not and will not violate any provision of, or
require any filing, registration, consent or approval under, any Law presently
in effect having applicability to Borrower or Guarantor; Borrower has filed all
tax returns (federal, state and local) required to be filed and has paid all
taxes, assessments and governmental charges and levies due and payable
(including those in respect of the Mortgaged Property), including interest and
penalties.
Section 5.05. Litigation. There are no actions, suits or proceedings
pending or threatened against or affecting it, Guarantor, the Mortgaged
Property, the validity or enforceability of the Mortgage or the priority of the
lien thereof at law, in equity or before or by any Governmental Authorities
except actions, suits or proceedings which have been disclosed to Administrative
Agent and Lenders in writing and which are fully covered by insurance or would,
if adversely determined, not substantially impair the ability of Borrower or
Guarantor to pay when due any amounts which may become payable under the Notes
or Guaranty or to otherwise pay and perform their respective obligations in
connection with the Loan; to Borrower's knowledge, neither it nor Guarantor is
in default with respect to any order, writ, injunction, decree or demand of any
court or Governmental Authorities.
Section 5.06. No Conflicts or Defaults. The consummation of the
transactions contemplated hereby and the performance hereof and of the other
Loan Documents have not resulted and will not result in any breach of, or
constitute a default under, any mortgage, deed of trust, lease, bank loan or
credit agreement, corporate charter, by-laws, partnership agreement or other
instrument to which Borrower or Guarantor is a party or by which either of them
may be bound or affected.
Section 5.07. Solvency. Borrower and Guarantor are, and upon
consummation of the transactions contemplated by this Agreement, the other Loan
Documents and any other related documents, will be, Solvent.
27
Section 5.08. Governmental Regulation. Borrower is not subject to
regulation under the Investment Company Act of 1940 or any Law limiting its
ability to incur indebtedness for money borrowed as contemplated hereby.
Section 5.09. Insurance. Borrower has in force, and has paid the
premiums in respect of, all of the insurance required by the Mortgage.
Section 5.10. ERISA. Neither Borrower nor Guarantor nor any other
Person, including any fiduciary, has engaged in any prohibited transaction (as
defined in Section 4975 of the Code or Section 406 of ERISA) which could subject
Borrower or Guarantor or any Person whom they have an obligation to indemnify to
any tax or penalty imposed under Section 4975 of the Code or Section 502 of
ERISA; neither Borrower nor Guarantor nor any ERISA Affiliate maintains,
contributes to or has any liability with respect to a Multiemployer Plan or any
other plan subject to Title IV of ERISA; each Employee Benefit Plan is
administered in accordance with its terms and in compliance with all applicable
Laws, including any reporting requirements; each Pension Plan intending to
qualify under Section 401(a) or 401(k) of the Code does so qualify; there is no
lien outstanding or security interest given in connection with a Pension Plan;
neither Borrower nor Guarantor nor any ERISA Affiliate has any liability with
respect to an accumulated funding deficiency (whether or not waived) under
Section 412 of the Code or Section 302 of ERISA; neither Borrower nor Guarantor
has any liability for retiree medical or death benefits (contingent or
otherwise) other than as required by Section 4980B of the Code; and no part of
the funds to be used by Borrower or Guarantor in satisfaction of their
respective obligations under this Agreement and the other Loan Documents
constitute "plan assets" of any "employee benefit plan" within the meaning of
ERISA or of any "plan" within the meaning of Section 4975(e)(1) of the Code, as
interpreted by the Internal Revenue Service and the United States Department of
Labor in rules, regulations, releases or bulletins or as interpreted under
applicable case law.
Section 5.11. Other Documents. The Major Leases and Premises Documents
are unmodified and in full force and effect, there are no defaults (or events
which with notice or the passage of time, or both, would constitute such a
default) under any thereof and all conditions to the effectiveness and
continuing effectiveness thereof required to be satisfied as of the date hereof
have been satisfied.
Section 5.12. No Defaults. There exists no Default or Event of Default.
Section 5.13. Accuracy of Information; Full Disclosure. Neither this
Agreement nor any documents, financial statements, reports, notices, schedules,
certificates, statements or other writings furnished by or on behalf of Borrower
or Guarantor to Lender in connection with the negotiation of this Agreement or
the other Loan Documents or the consummation of the transactions contemplated
hereby, or required herein or by the other Loan Documents to be furnished by or
on behalf of Borrower or Guarantor, contains any untrue or misleading statement
of a material fact or omits a material fact necessary to make the statements
herein or therein not misleading; there is no fact which Borrower has not
disclosed to Administrative Agent and Lenders in writing which materially
affects adversely nor, so far as Borrower can now foresee, will materially
affect adversely any of the Mortgaged Property or the business affairs or
financial condition of Borrower or Guarantor, or the ability of Borrower or
Guarantor to perform this Agreement and the other Loan Documents.
28
Section 5.14. Separate Tax and Zoning Lot. Each Mortgaged Property
constitutes a distinct parcel for purposes of zoning and of taxes, assessments
and impositions (public or private) and are not otherwise considered as part of
a larger single lot for purposes of zoning or of taxes, assessments or
impositions (public or private).
Section 5.15. The Improvements. There are no structural defects in the
Improvements or violations of any requirement of any Governmental Authorities
with respect thereto; the use, occupancy and operation of the Improvements
comply with all applicable permits and restrictive covenants affecting the
Mortgaged Property, as well as with the Premises Documents and with all zoning,
building, environmental, ecological, landmark, subdivision and other Laws, and
all requirements for such use, occupancy and operation have been satisfied;
there exist a sufficient number of parking spaces necessary to satisfy the
requirements of the Premises Documents and any leases and all zoning and other
applicable legal requirements with respect to the Mortgaged Property, and all
required landscaping, sidewalks and other amenities, and all off-site
improvements, related to the Improvements have been completed.
Section 5.16. Utility Services. All utility services necessary for the
use and operation of the Improvements for their intended purposes are available
and servicing the Property, including water supply, storm and sanitary sewer,
gas, electric power and telephone facilities.
Section 5.17. Creation of Liens. It has entered into no contract or
arrangement of any kind the performance of which by the other party thereto
would give rise to a lien on the Mortgaged Property or any part thereof.
Section 5.18. Roads. All roads necessary for the full utilization of
the Improvements for their intended purposes have been completed and dedicated
to public use and accepted by all appropriate Governmental Authorities.
Section 5.19. Requisition as Reaffirmation. Each Requisition submitted
to Administrative Agent, and the receipt of the funds requested thereby, shall
constitute an affirmation by Borrower that the representations and warranties
contained herein and in the other Loan Documents remain true and correct as of
the respective dates of such Requisitions.
Section 5.20. Patriot Act.
(a) As of the date hereof, none of the funds or other assets of
Borrower or of any of its direct or indirect owners (including Guarantor)
constitute property of, or are beneficially owned, directly or indirectly, by,
any Person subject to trade restrictions under United States Law, including
those who are covered by the International Emergency Economic Powers Act, 50
U.S.C. ss.ss.1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et
seq., and any Executive Orders or regulations promulgated thereunder (an
"Embargoed Person") with the result that the investment in Borrower (whether
directly or indirectly) is prohibited by such applicable Law or the Loan is in
violation of such Law; (ii) no Embargoed Person has any interest of any nature
whatsoever (whether directly or indirectly) in Borrower with the result that the
investment in Borrower (whether directly or indirectly) is prohibited by such
applicable Law or the Loan is in violation of such Law; and (iii) none of the
funds of Borrower have been derived from any unlawful activity with the result
that the investment in Borrower (whether directly or indirectly) is prohibited
by such applicable Law or the Loan is in violation of such Law.
29
(b) Neither Borrower nor any of its direct or indirect owners
(including Guarantor) is in violation of the U.S. Federal Bank Secrecy Act, as
amended, and its implementing regulations (31 CFR part 103), the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations
promulgated thereunder, any order issued with respect to anti-money laundering
by the U.S. Department of the Treasury's Office of Foreign Assets Control
("OFAC"), or any other anti-money laundering Law.
(c) Neither Borrower nor any if its direct or indirect owners
(including Guarantor) is a Person with whom United States Persons are restricted
from doing business with under (a) regulations issued by OFAC (including those
persons and entities named on OFAC's Specially Designated Nationals and Blocked
Persons list) or under any United States Law (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism) or (b) any other Law. Without
limiting the foregoing, Borrower is not presently funding its obligations
hereunder with funds from any of the Persons referred to in this paragraph (c).
(d) Guarantor has joined in this Agreement, for the purposes, among
other things, of joining in the representations to Administrative Agent and
Lenders in this Section 5.20.
ARTICLE VI
COVENANTS OF BORROWER
Borrower covenants and agrees with Administrative Agent and Lenders
that it will promptly:
Section 6.01. Compliance with Laws; Payment of Taxes. Comply with all
Laws applicable to it or the Mortgaged Property, or any part thereof, such
compliance to include, without limitation, paying before the same become
delinquent all taxes, assessments and governmental charges imposed on it or the
Mortgaged Property, or any part thereof, and promptly furnish Administrative
Agent with reports of any official searches made by Governmental Authorities and
any claims of violations thereof.
30
Section 6.02. Leases and Premises Documents. Not enter into any Major
Lease without the prior written consent of Administrative Agent, not to be
unreasonably withheld or delayed; and deliver to Administrative Agent certified
copies of all leases in respect of the Mortgaged Property and all Premises
Documents and all amendments to any thereof (in any case, whether executed
before or after the date hereof) together with (i) if requested by
Administrative Agent, current financial statements of the tenants thereunder or
parties thereto as the case may be, and of the guarantor(s), if any, of such
tenants or parties and (ii) in the case of all Major Leases, a
notice-of-assignment letter in the form of EXHIBIT B; and keep all Premises
Documents and, except as may be permitted by the Mortgage, all leases in full
force and effect.
Section 6.03. Inspection Fee. Commencing on the first anniversary of
the date hereof and on each anniversary thereafter during the term of the Loan,
deliver to Administrative Agent, for its own account, a non-refundable
administrative inspection fee in the amount of $1,000.00 (the "Inspection Fee")
with respect to the costs associated with Lender's annual inspection of the
Property.
Section 6.04. Continuing Accuracy of Representations and Warranties.
Cause all of the representations and warranties made to Administrative Agent or
Lenders herein and in the other Loan Documents to be continuously true and
correct.
Section 6.05. Covenants, Restrictions and Easements. Comply with all
restrictions, covenants and easements affecting the Mortgaged Property or the
Improvements and cause the satisfaction of all conditions hereof.
Section 6.06. Financial Covenants. Comply at all times with the DSC
Test and the Loan to Value Test, as calculated in accordance with Section 2.04
hereof, provided, however, that such non-compliance shall not constitute an
Event of Default under the Mortgage and hereunder if, within forty-five (45)
days of the date upon which Mortgagor receives written notice from
Administrative Agent of Borrower's non-compliance thereof (the "Notice Date"),
Mortgagor complies with the provisions of this Section 6.06, by either (i)
agreeing in writing to permanently reduce the Loan Amount and the Total Loan
Commitments by an amount which would bring Borrower into compliance with the DSC
Test and the Loan to Value Test and, to the extent the Loan Amount as so reduced
would exceed the Principal Amount, making a mandatory principal payment in the
amount of such excess such that, at no time, shall the Principal Amount exceed
the Loan Amount as reduced from time to time, with Borrower paying all
applicable prepayment or other charges, if any, provided for herein or in the
Note with respect to such mandatory principal payment or (ii) delivering to
Administrative Agent cash, a letter of credit from a financial institution
acceptable to Administrative Agent, or such other collateral as may be
acceptable to Lender in its sole discretion in an amount equal to the amount
that would have been required to have been prepaid pursuant to (i) above in
order to cure such default. In the case of Guarantor, Guarantor shall comply at
all times with the Liquidity Requirement and the Net Worth Requirement.
31
Section 6.07. Payment of Costs. Pay all costs and expenses required for
the satisfaction of the conditions hereof, including, without limitation (i) all
document and stamp taxes, recording and filing expenses and fees and commissions
lawfully due to brokers in connection with the transactions contemplated hereby,
(ii) any taxes, insurance premiums, liens, security interests or other claims or
charges against the Property or Improvements and (iii) all costs of completion
of the work to be performed by Borrower in space to be occupied in the
Improvements (including public space) to permit the lawful occupancy thereof for
the purposes contemplated by actual or prospective lessees or owners of such
space as set forth in the individual leases, subleases or purchase contracts
thereof or in detailed work letters or other agreements or letters of intent
with respect thereto, or, in cases where there are no such leases, subleases,
contracts, work letters or other documents as aforesaid, as set forth in
Borrower's standard work letter or the standard form of lease or contract, if
any, required by paragraph (10) of Section 4.01(d), or, in cases where none of
the foregoing exists, to the level of building standard in accordance with
industry practices, as conclusively determined by the Engineering Consultant.
Section 6.08. Brokers. Indemnify Administrative Agent and Lenders
against claims of brokers arising by reason of the execution hereof or the
consummation of the transactions contemplated hereby.
Section 6.09. Correction of Defects. Upon demand of Administrative
Agent or the Engineering Consultant, correct any defects (including structural)
in the Improvements.
Section 6.10. Unused Fee. Borrower shall, during the term of the Loan,
pay to Administrative Agent for the account of each Lender a fee (the "Unused
Fee"), computed on the daily unused Individual Loan Commitment of such Lender
based on the Loan Amount for each day at a rate per annum equal to 0.10%,
calculated on the basis of a year of three hundred sixty (360) days for the
actual number of days elapsed. The accrued Unused Fee shall be due and payable
quarterly in arrears on the first day of July, October, January and April of
each year commencing on July 1, 2005, and upon the Maturity Date (as stated, by
acceleration or otherwise) or earlier termination of the Loan.
Section 6.11. Reporting and Miscellaneous Document Requirements.
Furnish directly to each Lender:
(1) Semi-Annual Financial Statements of Borrower. On a
semi-annual basis, as soon as available and in any event within ninety
(90) days after the end of each applicable semi-annual period,
Financial Statements of Borrower, in reasonable detail (including
detailed balance sheet, income statement, cash flow statement and
one-year projections) and stating in comparative form the respective
figures for the corresponding date and period in the prior semi-annual
period;
(2) Annual Financial Statements of Borrower. On a annual
basis, as soon as available and in any event within ninety (90) days
after the end of each applicable annual period, Financial Statements of
Borrower, in reasonable detail (including detailed balance sheet,
income statement, cash flow statement and one-year projections) and
stating in comparative form the respective figures for the
corresponding date and period in the prior annual period;
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(3) Quarterly and Annual Financial Statements of Acadia Realty
Trust. As soon as available and in any event within one hundred twenty
(120) days after the end of each calendar quarter and Fiscal Year,
Financial Statements of Acadia Realty Trust, a Maryland real estate
investment trust ("Sponsor"), which is the parent of Guarantor, as of
the end of and for such calendar quarter and Fiscal Year, in reasonable
detail (including detailed balance sheet, income statement, cash flow
statement, and contingent liability schedule) and stating in
comparative form the respective figures for the corresponding date and
period in the prior Fiscal Year, audited (with respect to the annual
financial statements only) by one of the so-called "Big Four"
accounting firms or another firm of certified public accountants
reasonably acceptable to Administrative Agent , provided that,
notwithstanding the foregoing, so long as Sponsor timely files 10Q and
10K reports with the Securities and Exchange Commission, Sponsor shall
have complied with this clause (3);
(4) Covenant Compliance Certificates. Within sixty (60) days
after the end of each fiscal quarter, Guarantor shall submit to Lender
a Covenant Compliance Certificate certified by a principal financial or
accounting officer or general partner, as the case may be, in the Form
of EXHIBIT E-1 hereto certifying, on the basis of Guarantor's unaudited
financial statements, that Guarantor has met the Liquidity Requirement
for the applicable period. As soon as available and in any event within
one hundred twenty (120) days after the end of each Fiscal Year,
Guarantor shall submit to Lender a Covenant Compliance Certificate
certified by a principal financial or accounting officer or general
partner, as the case may be, in the Form of EXHIBIT E-2 hereto
certifying, on the basis of Guarantor's audited Financial Statements as
of the end of and for such Fiscal Year, that Guarantor has met the Net
Worth Requirement and the Liquidity Requirement;
(5) Notice of Litigation. Promptly after the commencement and
knowledge thereof, notice of all actions, suits, and proceedings before
any court or arbitrator or any Governmental Authority, affecting (i)
Borrower which, if determined adversely to Borrower are likely to
result in a Material Adverse Change or (ii) all or any portion of the
Mortgaged Property under any Mortgage;
(6) Notices of Defaults and Events of Default. As soon as
possible and in any event within ten (10) days after Borrower becomes
aware of the occurrence of a Default or any Event of Default, a written
notice setting forth the details of such Default or Event of Default
and the action which is proposed to be taken with respect thereto;
(7) Material Adverse Change. As soon as is practicable and in
any event within five (5) days after knowledge of the occurrence of any
event or circumstance which is likely to result in or has resulted in a
Material Adverse Change, written notice thereof;
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(8) Offices. Thirty (30) days' prior written notice of any
change in the chief executive office or principal place of business of
Borrower;
(9) Environmental and Other Notices. As soon as possible and
in any event within ten (10) days after receipt, copies of (i) all
Environmental Notices received by Borrower which are not received in
the ordinary course of business and which relate to any Property or a
situation which is likely to result in a Material Adverse Change and
(ii) all reports of any official searches made by any Governmental
Authority having jurisdiction over any Property or the Improvements
thereon, and of any claims of violations thereof and, on an annual
basis, delivered with Borrower's annual Financial Statements, a report
from Borrower regarding the status of the environmental matters
discussed in Section 6.12;
(10) Insurance Coverage. Promptly, such information concerning
Borrower's insurance coverage as Administrative Agent may reasonably
request;
(11) Bankruptcy of Tenants. Promptly after becoming aware of
the same, written notice of the bankruptcy, insolvency or cessation of
operations of any tenant in the Improvements on any Property to which
5% or more of the aggregate minimum rent from such Improvements is
attributable;
(12) Leasing Reports and Property Information. (i) Upon
request by Administrative Agent, but no more often than quarterly, an
updated rent roll, leasing report, and operating and cash statements
for each Property and (ii) (ii) as soon as available and in any event
within ninety (90) days after the end of each Fiscal Year, tenant sales
report for each Property, to the extent Borrower is entitled to receive
same pursuant to the terms of the respective leases; and
(13) General Information. Promptly, such other information
respecting the condition or operations, financial or otherwise, of
Borrower, Guarantor or any Properties of Borrower as Administrative
Agent may from time to time reasonably request.
Section 6.12. Specified Environmental Matters.
(a) The Michigan Department of Environmental Quality ("MDEQ") has noted
certain environmental concerns at the Bloomfield/MI Property related to past
and/or present automotive service related activities thereon. Borrower hereby
agrees to (i) cooperate with any parties responsible for the environmental
concern, and with MDEQ in order that MDEQ completes its monitoring and
assessment of the Bloomfield/MI Property and issues appropriate closure
documentation confirming that no further action is necessary with respect to
such environmental concerns and (ii) promptly deliver complete copies of all
such documentation to Administrative Agent.
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(b) The Rhode Island Department of Environmental Management ("RIDEM")
has noted certain environmental concerns requiring remediation at the
Woonsocket/RI Property, which RD Woonsocket has performed to a substantial
degree. Borrower hereby agrees to cause all such remediation and related
monitoring to be completed such that RIDEM issues appropriate closure
documentation confirming that no further action is necessary with respect to
such remediation and monitoring on or before the second anniversary of the date
hereof, provided that, if RIDEM requires further monitoring of environmental
conditions which RIDEM has previously noted as of the date hereof, Borrower
shall continue such monitoring to completion and shall not be in default of this
covenant so long as Borrower delivers complete copies of the orders from RIDEM
extending such monitoring period, along with any and all documents related
thereto.
ARTICLE VII
ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS
Section 7.01. Appointment, Powers and Immunities of Administrative
Agent. Each Lender hereby irrevocably appoints and authorizes Administrative
Agent to act as its agent hereunder and under any other Loan Document with such
powers as are specifically delegated to Administrative Agent by the terms of
this Agreement and any other Loan Document, together with such other powers as
are reasonably incidental thereto. Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and any
other Loan Document or required by Law, and shall not by reason of this
Agreement be a fiduciary or trustee for any Lender except to the extent that
Administrative Agent acts as an agent with respect to the receipt or payment of
funds, nor shall Administrative Agent have any fiduciary duty to Borrower nor
shall any Lender have any fiduciary duty to Borrower or any other Lender. No
implied covenants, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or otherwise exist against Administrative Agent.
Neither Administrative Agent nor any of its directors, officers, employees,
agents, attorneys-in-fact or Affiliates shall be responsible to Lenders for any
recitals, statements, representations or warranties made by Borrower or any
officer, partner or official of Borrower or any other Person contained in this
Agreement or any other Loan Document, or in any certificate or other document or
instrument referred to or provided for in, or received by any of them under,
this Agreement or any other Loan Document, or for the value, legality, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document or instrument referred to or
provided for herein or therein, for the perfection or priority of any lien
securing the obligations hereunder or thereunder or for any failure by Borrower
or any Guarantor to perform any of its obligations hereunder or thereunder.
Administrative Agent may employ agents and attorneys-in-fact and shall not be
responsible, except as to money or securities received by it or its authorized
agents, for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Neither Administrative Agent nor any of its
directors, officers, employees, agents, attorneys-in-fact or Affiliates shall be
liable or responsible for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith, except for its or their own gross negligence or willful misconduct.
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Section 7.02. Reliance by Administrative Agent. Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by Administrative Agent.
Administrative Agent may deem and treat each Lender as the holder of its Note
and interest in the Loan for all purposes hereof and shall not be required to
deal with any Person who has acquired a Participation in the Loan from a Lender.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, in accordance with instructions signed by the
Required Lenders, and such instructions of the Required Lenders and any action
taken or failure to act pursuant thereto shall be binding on all of Lenders and
any other holder of all or any portion of the Loan or Participation therein.
Section 7.03. Defaults. Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default or of an Event of Default unless
Administrative Agent has actual knowledge thereof or has received notice from a
Lender or Borrower specifying such Default or Event of Default and stating that
such notice is a "Notice of Default." In the event that Administrative Agent has
such actual knowledge or receives such a notice of the occurrence of a Default
or Event of Default, Administrative Agent shall give prompt notice thereof to
Lenders. Administrative Agent shall promptly send to each Lender a copy of any
notice of a Default or Event of Default that Administrative Agent sends to
Borrower or Guarantor. Administrative Agent, following consultation with
Lenders, shall (subject to Section 7.07) take such action with respect to such
Default or Event of Default which is continuing, including with respect to the
exercise of remedies or the realization on, or operation or disposition of, any
or all of the Mortgaged Property or any other collateral for the Loan, as shall
be directed by the Required Lenders; provided, however, that, unless and until
Administrative Agent shall have received such directions, Administrative Agent
may take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem to be in the best interest of
Lenders. In no event shall Administrative Agent be required to take any such
action which it determines would be contrary to the Loan Documents or to Law.
Each of Lenders acknowledges and agrees that no individual Lender may separately
enforce or exercise any of the provisions of any of the Loan Documents
(including, without limitation, the Notes) other than through Administrative
Agent.
Section 7.04. Rights of Administrative Agent as Lender. With respect to
its Note and interest in the Loan, Administrative Agent in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as Administrative
Agent, and the terms "Lender" and "Lenders" shall include Administrative Agent
in its capacity as a Lender. Administrative Agent and its affiliates may
(without having to account therefor to any Lender) accept deposits from, lend
money to (on a secured or unsecured basis), and generally engage in any kind of
banking, trust or other business with, Borrower or Guarantor (and any affiliates
of them) as if it were not acting as Administrative Agent.
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Section 7.05. Sharing of Costs by Lenders; Indemnification of
Administrative Agent. Each Lender shall pay its ratable share, based on the
respective outstanding principal balances under its Note and the other Notes, of
any expenses incurred (and not paid or reimbursed by Borrower after demand for
payment is made by Administrative Agent) by or on behalf of Lenders in
connection with any Default or Event of Default, including, without limitation,
costs of enforcement of the Loan Documents and any advances to pay taxes or
insurance premiums, to complete the Improvements or otherwise to preserve the
lien of the Mortgage or to preserve or protect the Mortgaged Property. In the
event a Lender fails to pay its share of expenses as aforesaid, and all or a
portion of such unpaid amount is paid by Administrative Agent and/or one or more
of the other Lenders, then the defaulting Lender shall reimburse Administrative
Agent and/or the other Lender(s) for the portion of such unpaid amount paid by
it or them, as the case may be, together with interest thereon at the Prime
Based Rate from the date of payment by Administrative Agent and/or the other
Lender(s). In addition, each Lender agrees to reimburse and indemnify
Administrative Agent (to the extent it is not paid by on or behalf of Borrower,
after demand for payment is made by Administrative Agent, under Section 8.13 or
under the applicable provisions of any other Loan Document, but without limiting
the obligation of Borrower under said Section 8.13 or such provisions), for such
Lender's ratable share, based upon the respective outstanding principal balances
under its Note and the other Notes, of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against Administrative Agent in any way relating to or
arising out of this Agreement, any other Loan Document or any other documents
contemplated by or referred to herein or the transactions contemplated hereby or
thereby (including, without limitation, the costs and expenses which Borrower is
obligated to pay under Section 8.13 or under the applicable provisions of any
other Loan Document) or the enforcement of any of the terms hereof or thereof or
of any such other documents or instruments; provided, however, that no Lender
shall be liable for (i) any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the party to be indemnified or (ii)
any loss of principal or interest with respect to Administrative Agent's Note or
interest in the Loan.
Section 7.06. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender acknowledges that it has, independently and without reliance on
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own analysis of the
collateral for the Loan and of the credit of Borrower and Guarantor, and its own
decision to enter into this Agreement, and that it will, independently and
without reliance upon Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or any other Loan Document. Administrative Agent shall not
be required to keep itself informed as to the performance or observance by
Borrower of this Agreement or any other Loan Document or any other document
referred to or provided for herein or therein or to inspect the properties
(including, without limitation, the Properties) or books of Borrower. Except for
notices, reports and other documents and information expressly required to be
furnished to Lenders by Administrative Agent hereunder, Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the affairs, financial condition or business of
Borrower or Guarantor (or any Affiliate of them) which may come into the
possession of Administrative Agent or any of its Affiliates. Administrative
Agent shall not be required to file this Agreement, any other Loan Document or
any document or instrument referred to herein or therein, for record or give
notice of this Agreement, any other Loan Document or any document or instrument
referred to herein or therein, to anyone.
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Section 7.07. Failure of Administrative Agent to Act. Except for action
expressly required of Administrative Agent hereunder, Administrative Agent shall
in all cases be fully justified in failing or refusing to act hereunder unless
it shall have received further assurances (which may include cash collateral) of
the indemnification obligations of Lenders under Section 7.05 in respect of any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. If any indemnity furnished to Administrative
Agent for any purpose shall, in the opinion of Administrative Agent, be
insufficient or become impaired, Administrative Agent may call for additional
indemnity and cease, or not commence, the action indemnified against until such
additional indemnity is furnished.
Section 7.08. Resignation or Removal of Administrative Agent.
Administrative Agent may resign on at least thirty (30) days' written notice to
Lenders and Borrower or upon the occurrence of an Event of Default.
Administrative Agent may be removed at any time with cause by the Required
Lenders, provided that Borrower and the other Lenders shall be promptly notified
thereof. Upon such resignation or removal of Administrative Agent, the Required
Lenders shall have the right to appoint a successor Administrative Agent, which
successor Administrative Agent shall (provided there exists no Event of Default)
be subject to Borrower's approval, such approval not to be unreasonably withheld
or delayed. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within twenty
(20) days after the resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
Lenders, appoint a successor Administrative Agent, which shall be one of
Lenders, within ten (10) days. The Required Lenders or the retiring
Administrative Agent, as the case may be, shall upon the appointment of a
successor Administrative Agent promptly so notify Borrower and the other
Lenders. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article VII shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
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Section 7.09. Amendments Concerning Agency Function. Notwithstanding
anything to the contrary contained in this Agreement, Administrative Agent shall
not be bound by any waiver, amendment, supplement or modification of this
Agreement or any other Loan Document which affects its duties, rights, and/or
function hereunder or thereunder unless it shall have given its prior written
consent thereto.
Section 7.10. Liability of Administrative Agent. Administrative Agent
shall not have any liabilities or responsibilities to Borrower on account of the
failure of any Lender to perform its obligations hereunder or to any Lender on
account of the failure of Borrower to perform its obligations hereunder or under
any other Loan Document.
Section 7.11. Transfer of Agency Function. Without the consent of
Borrower or any Lender, Administrative Agent may at any time or from time to
time transfer its functions as Administrative Agent hereunder to any of its
offices wherever located in the United States, provided that Administrative
Agent shall promptly notify Borrower and Lenders thereof.
Section 7.12. Non-Receipt of Funds by Administrative Agent;
Adjustments.
(a) Unless Administrative Agent shall have received notice from a
Lender or Borrower (either one as appropriate being the "Payor") prior to the
date on which such Lender is to make payment hereunder to Administrative Agent
of Loan proceeds or Borrower is to make payment to Administrative Agent, as the
case may be (either such payment being a "Required Payment"), which notice shall
be effective upon receipt, that the Payor will not make the Required Payment in
full to Administrative Agent, Administrative Agent may assume that the Required
Payment has been made in full to Administrative Agent on such date, and
Administrative Agent in its sole discretion may, but shall not be obligated to,
in reliance upon such assumption, make the amount thereof available to the
intended recipient on such date. If and to the extent the Payor shall not have
in fact so made the Required Payment in full to Administrative Agent, the
recipient of such payment shall repay to Administrative Agent forthwith on
demand such amount made available to it together with interest thereon, for each
day from the date such amount was so made available by Administrative Agent
until the date Administrative Agent recovers such amount, at the Federal Funds
Rate.
(b) If, after Administrative Agent has paid each Lender's share of any
payment received or applied by Administrative Agent in respect of the Loan, that
payment is rescinded or must otherwise be returned or paid over by
Administrative Agent, whether pursuant to any bankruptcy or insolvency Law,
sharing of payments clause of any loan agreement or otherwise, such Lender
shall, at Administrative Agent's request, promptly return its share of such
payment or application to Administrative Agent, together with such Lender's
proportionate share of any interest or other amount required to be paid by
Administrative Agent with respect to such payment or application. In addition,
if a court of competent jurisdiction shall adjudge that any amount received and
distributed by Administrative Agent is to be repaid, each Person to whom any
such distribution shall have been made shall either repay to Administrative
Agent its share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be determined by such court.
39
Section 7.13. Withholding Taxes. Each Lender represents that it is
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to Administrative Agent such forms,
certifications, statements and other documents as Administrative Agent may
reasonably request from time to time to evidence such Lender's exemption from
the withholding of any tax imposed by any jurisdiction or to enable
Administrative Agent to comply with any applicable Laws relating thereto.
Without limiting the effect of the foregoing, if any Lender is not created or
organized under the Laws of the United States or any state thereof, such Lender
will furnish to Administrative Agent Form W-8ECI or Form W-8BEN of the U.S.
Internal Revenue Service, or such other forms, certifications, statements or
documents, duly executed and completed by such Lender, as evidence of such
Lender's complete exemption from the withholding of United States tax with
respect thereto. Administrative Agent shall not be obligated to make any
payments hereunder to such Lender in respect of the Loan until such Lender shall
have furnished to Administrative Agent the requested form, certification,
statement or document.
Section 7.14. Sharing of Payments among Lenders. If a Lender shall
obtain payment of any principal of its Note or of interest thereon through the
exercise of any right of setoff, banker's lien or counterclaim, or by any other
means (including direct payment), and such payment results in such Lender
receiving a greater payment than it would have been entitled to had such payment
been paid directly to Administrative Agent for disbursement to Lenders, then
such Lender shall promptly purchase for cash from the other Lenders
Participations in the Loan in such amounts, and make such other adjustments from
time to time as shall be equitable, to the end that all Lenders shall share
ratably the benefit of such payment. To such end Lenders shall make appropriate
adjustments among themselves (by the resale of Participations sold or otherwise)
if such payment is rescinded or must otherwise be restored.
Section 7.15. Possession of Documents. Each Lender shall maintain
possession of its own Note. Administrative Agent shall hold all other Loan
Documents and related documents in its possession and maintain separate records
and accounts with respect to the Loan, reflecting the interests of Lenders in
the Loan, and shall permit Lenders and their representatives access at all
reasonable times to inspect such Loan Documents, related documents, records and
accounts.
Section 7.16. Effect of a Lender's Failure to Make an Advance. In the
event any Lender fails for any reason to fund the portion it is required to fund
of any advance of Loan proceeds by 3:00 p.m. on the second Business Day after
the date established by Administrative Agent as the date such advance is to be
made, such Lender shall be a "Delinquent Lender" for all purposes hereunder
until and unless such delinquency is cured in accordance with the terms of and
by the time permitted under Section 7.17, and the following provisions shall
apply:
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(a) Administrative Agent shall notify (such notice being
referred to as the "Delinquency Notice") each Lender and Borrower of
any Lender's failure to fund. Each Non-Delinquent Lender shall have the
right, but in no event or under any circumstance the obligation, to
fund such Delinquent Lender's portion of such advance, provided that,
within twenty (20) days of the date of the Delinquency Notice (the
"Election Period"), such Non-Delinquent Lender or Lenders (each such
Lender, an "Electing Lender") irrevocably commit(s) by notice in
writing (an "Election Notice") to Administrative Agent, the other
Lenders and Borrower to fund the Delinquent Lender's portion of the
advance that is the subject of the delinquency and to assume the
Delinquent Lender's obligations with respect to the advancing of the
entire undisbursed portion of the Delinquent Lender's Individual Loan
Commitment (such entire undisbursed portion of the Delinquent Lender's
Individual Loan Commitment, including its portion of the advance that
is the subject of the delinquency, the "Delinquency Amount"). If
Administrative Agent receives more than one Election Notice within the
Election Period, then the Electing Lenders sending such notices shall
be deemed to have committed to fund ratable shares of the Delinquency
Amount based upon the amounts of their respective Individual Loan
Commitments. If there are one or more Electing Lenders and the
Delinquent Lender fails to cure during the Election Period as provided
in Section 7.17, then upon the expiration of the Election Period, each
Electing Lender's Individual Loan Commitment shall be automatically
increased by the Delinquency Amount (if there is only one Electing
Lender) or such Electing Lender's ratable share, determined as
aforesaid, of the Delinquency Amount (if there are two or more Electing
Lenders), and the Delinquent Lender's Individual Loan Commitment shall
automatically be reduced by the Delinquency Amount. Administrative
Agent shall thereupon notify Borrower and each Lender of (i) the
adjusted amounts of the Individual Loan Commitments and (ii) if the
advance that was the subject of the delinquency was not made pursuant
to Section 7.12 or was refunded by Borrower pursuant to paragraph (e)
of this Section, the rescheduled date of such advance (which shall be
no sooner than three (3) Business Days after such notice). In the event
Administrative Agent shall have funded, pursuant to Section 7.12, the
entire advance that was the subject of the delinquency (including the
Delinquent Lender's portion), and Borrower shall not have refunded such
advance pursuant to paragraph (e) of this Section, the Electing
Lender(s) shall remit to Administrative Agent the Delinquent Lender's
portion of the advance, or their ratable shares thereof, as the case
may be, within three (3) Business Days of the notice provided for in
the immediately preceding sentence, and Administrative Agent shall
reimburse itself from such funds for making the Delinquent Lender's
portion of the advance. Notwithstanding anything to the contrary
contained herein, if Administrative Agent advances its own funds in
respect of a Delinquent Lender's portion of an advance, Administrative
Agent shall be entitled to the interest on the portion of the Principal
Amount represented thereby, from the date Administrative Agent makes
such advance until the date it is reimbursed therefor.
41
(b) In connection with the adjustment of the amounts of the
Individual Loan Commitments of the Delinquent Lender and Electing
Lender(s) upon the expiration of the Election Period as aforesaid,
Borrower covenants that it shall, promptly following the request of the
Electing Lender(s), execute and deliver to each Electing Lender and the
Delinquent Lender substitute notes substantially in the form of EXHIBIT
D and stating: "This Note is a substitute note as contemplated by
Section 7.16 of the Loan Agreement; it replaces and is in lieu of that
certain note made by Maker dated [date of Note] to the order of
[Lender] in the principal sum of [Lender's original Individual Loan
Commitment]." Such substitute notes shall be in amounts equal to such
Lenders' respective Individual Loan Commitments, as adjusted. All such
substitute notes shall constitute "Notes" and the obligations evidenced
by such substitute notes shall be secured by the Mortgage. In
connection with Borrower's execution of substitute notes as aforesaid,
Borrower shall deliver to Administrative Agent evidence, satisfactory
to Administrative Agent, of all requisite partnership, corporate or
other action to authorize Borrower's execution and delivery of the
substitute notes and any related documents. The execution and delivery
of substitute notes as required above shall be a condition precedent to
any further advances of Loan proceeds. Upon receipt of its substitute
note, the Electing Lender and the Delinquent Lender will return to
Borrower their notes that were replaced, provided that the delivery of
a substitute note to the Delinquent Lender pursuant to this Section
7.16 shall operate to void and replace the note previously held by the
Delinquent Lender regardless of whether the Delinquent Lender returns
same as required hereby. Borrower, Administrative Agent and Lenders
shall execute such modifications to the Loan Documents as shall, in the
reasonable judgment of Administrative Agent, be necessary or desirable
in connection with the adjustment of the amounts of Individual Loan
Commitments in accordance with the foregoing provisions of this
Section.
(c) In the event that no Lender elects to commit to fund the
Delinquency Amount within the Election Period as provided in paragraph
(a) of this Section, Administrative Agent shall, upon the expiration of
the Election Period, so notify Borrower and each Lender and the
provisions of Section 2.15 shall apply.
(d) Subject to a Delinquent Lender's right to cure as provided
in Section 7.17, but notwithstanding anything else to the contrary
contained in this Agreement, the Delinquent Lender's interest in, and
any and all amounts due to a Delinquent Lender under, the Loan
Documents (including, without limitation, all principal, interest, fees
and expenses) shall be subordinate in lien priority and to the
repayment of all amounts (including, without limitation, interest) then
or thereafter due or to become due to the Non-Delinquent Lenders under
the Loan Documents (including future advances), and the Delinquent
Lender thereafter shall have no right to participate in any discussions
among and/or decisions by Lenders hereunder and/or under the other Loan
Documents. Further, any Delinquent Lender shall be bound by any
amendment to, or waiver of, any provision of, or any action taken or
omitted to be taken by Administrative Agent and/or the Non-Delinquent
Lenders under, any Loan Document which is made subsequent to the
Delinquent Lender's becoming a Delinquent Lender.
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(e) If, pursuant to the operation of Section 7.12, an advance
of Loan proceeds is made without Administrative Agent's receipt of a
Delinquent Lender's portion thereof, Borrower shall, upon demand of
Administrative Agent, refund the entire such advance to Administrative
Agent. Borrower's failure to do so within ten (10) days of such demand
shall, notwithstanding anything to the contrary contained herein or in
the Mortgage, constitute an Event of Default under the Mortgage. Upon
its receipt of such funds from Borrower, Administrative Agent shall
promptly remit to each Non-Delinquent Lender its appropriate share
thereof.
Section 7.17. Cure by Delinquent Lender. A Delinquent Lender may cure a
delinquency arising out of its failure to fund its required portion of any
advance if, within the Election Period, it remits to Administrative Agent its
required portion of such advance (together with interest thereon at the Default
Rate from the date such advance was to have been made if such advance was made
by Administrative Agent and not refunded by Borrower pursuant to paragraph (e)
of Section 7.16), in which event Administrative Agent shall so notify Borrower
and the Non-Delinquent Lenders (i) of its receipt of such funds and (ii)(A) if
the advance that was the subject of the delinquency shall not have been made (or
shall have been refunded by Borrower pursuant to paragraph (e) of Section 7.16),
of the rescheduled date of the advance (which shall be no sooner then three (3)
Business Days after such notice) or (B) if Administrative Agent shall have
funded the entire advance that was the subject of the delinquency (including the
Delinquent Lender's portion) and Borrower shall not have refunded such advance
pursuant to paragraph (e) of Section 7.16, of its intention to reimburse itself
from funds received from the Delinquent Lender (which reimbursement is hereby
authorized) for funding the Delinquent Lender's required portion of the advance.
In the event any Delinquent Lender cures a delinquency prior to the expiration
of the Election Period (or thereafter with the consent of all of the
Non-Delinquent Lenders), such Delinquent Lender nonetheless shall be bound by
any amendment to or waiver of any provision of, or any action taken or omitted
to be taken by Administrative Agent and/or the Non-Delinquent Lenders under, any
Loan Document which is made subsequent to that Lender's becoming a Delinquent
Lender and prior to its curing the delinquency as provided in this Section,
provided that such amendment or waiver of action was taken in accordance with
the provisions of this Agreement. A Delinquent Lender shall have absolutely no
right to cure any delinquency after the expiration of the Election Period unless
all Non-Delinquent Lenders in their sole discretion elect to permit such cure.
Section 7.18. Delinquent Lender Not Excused. Nothing contained in
Sections 7.16 or 7.17 shall release or in any way limit a Delinquent Lender's
obligations as a Lender hereunder and/or under any other of the Loan Documents.
Further, a Delinquent Lender shall indemnify and hold harmless Administrative
Agent, each of the Non-Delinquent Lenders and Borrower from any claim, loss, or
costs incurred by any of them as a result of a Delinquent Lender's failure to
comply with the requirements of this Agreement, including, without limitation,
any and all additional losses, damages, costs and expenses (including, without
limitation, attorneys' fees) incurred by Administrative Agent and any Lender as
a result of and/or in connection with (i) a Non-Delinquent Lender's acting as an
Electing Lender, (ii) any enforcement action brought by Administrative Agent
against a Delinquent Lender, and (iii) any action brought against Administrative
Agent and/or Lenders. The indemnification provided above shall survive any
termination of this Agreement.
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Section 7.19. Notices Regarding Delinquent Lender. Notices by
Administrative Agent or Lenders pursuant to Sections 7.16 or 7.17 may be by
telephone (to be promptly confirmed in writing).
Section 7.20. Replacement Lender. In the event any Lender becomes a
Delinquent Lender and none of the other Lenders elects to be an Electing Lender
pursuant to Section 7.16, Borrower shall have the right, provided there exists
no Default or Event of Default, to cause another financial institution,
reasonably acceptable to (x) the Required Lenders if such institution is not an
Eligible Assignee or (y) Administrative Agent if such institution is an Eligible
Assignee, to assume the Delinquent Lender's obligations with respect to the
Delinquency Amount on the then-existing terms and conditions of the Loan
Documents (such replacement institution, a "Replacement Lender"). Such
assumption shall be pursuant to a written instrument reasonably satisfactory to
Administrative Agent. Upon such assumption, the Replacement Lender shall become
a "Lender" for all purposes hereunder, with an Individual Loan Commitment in an
amount equal to the Delinquency Amount, and the Delinquent Lender's Individual
Loan Commitment shall automatically be reduced by the Delinquency Amount. In
connection with the foregoing, Borrower shall execute and deliver to the
Replacement Lender and the Delinquent Lender substitute notes substantially in
the form of EXHIBIT D and stating: "This Note is a substitute note as
contemplated by Section 7.20 of the Loan Agreement; it replaces and is in lieu
of that certain note made by Maker dated [date of Note] to the order of
[Delinquent Lender] in the principal sum of [Delinquent Lender's original
Individual Loan Commitment]." Such substitute notes shall be in amounts equal
to, in the case of the Replacement Lender's note, the Delinquency Amount and, in
the case of the Delinquent Lender's note, its Individual Loan Commitment, as
reduced as aforesaid. Such substitute notes shall constitute "Notes" and the
obligations evidenced by such substitute notes shall be secured by the Mortgage.
In connection with Borrower's execution of substitute notes as aforesaid,
Borrower shall deliver to Administrative Agent evidence, satisfactory to
Administrative Agent, of all requisite partnership/corporate action to authorize
Borrower's execution and delivery of the substitute notes and any related
documents. Upon delivery of the foregoing substitute note(s), each Delinquent
Lender shall return to Borrower its note which was replaced, provided that the
delivery of a substitute note to the Delinquent Lender pursuant to this Section
7.20 shall operate to void and replace the note previously held by the
Delinquent Lender regardless of whether Delinquent Lender returns same as
required hereby.
Borrower, Administrative Agent and Lenders shall execute such
modifications to the Loan Documents as shall, in the reasonable judgment of
Administrative Agent, be necessary or desirable in connection with the
substitution of Lenders in accordance with the foregoing provisions of this
Section.
Lenders shall reasonably cooperate with Borrower's attempts to obtain a
Replacement Lender, but they shall not be obligated to modify the Loan Documents
in connection therewith, other than modifications pursuant to the immediately
preceding paragraph or modifications which are favorable to Lenders.
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ARTICLE VIII
GENERAL CONDITIONS AND PROVISIONS
Section 8.01. Disbursement Not Waiver. The disbursement by Lenders of
the Loan made prior to or without the fulfillment by Borrower of all of the
conditions precedent thereto, whether or not known to Lenders, shall not
constitute a waiver by Lenders of the requirement that all conditions, including
the non-performed conditions, shall be satisfied.
Section 8.02. No Third-Party Beneficiaries. This Agreement is solely
for the benefit of Administrative Agent, Lenders and Borrower. All conditions of
the obligations of Lenders hereunder are imposed solely and exclusively for the
benefit of Lenders and may be freely waived or modified in whole or in part by
Lenders at any time if in their sole discretion it deems it advisable to do so,
and no person other than Borrower (provided, however, that all conditions have
been satisfied) shall have standing to require Lenders to disburse the Loan or
to be a beneficiary of this Agreement.
Section 8.03. Documentation Etc. Satisfactory. All documentation and
proceedings deemed by Administrative Agent or Administrative Agent's Counsel to
be necessary or required in connection herewith and the documents relating
hereto shall be subject to the prior approval of, and satisfactory to, both of
them as to form and substance. In addition, the Persons responsible for the
execution and delivery of, and signatories to, all of such documentation, shall
be acceptable to, and subject to the approval of, Administrative Agent and
Administrative Agent's Counsel. Administrative Agent or Administrative Agent's
Counsel shall receive copies, certified if requested by either of them, of all
documents which they may require in connection with the transactions
contemplated hereby.
Section 8.04. Lender's Determination Conclusive. Administrative Agent
shall, at all times, be free to independently establish to its satisfaction and
in its absolute discretion the existence or nonexistence of any fact or facts
the existence or nonexistence of which is a condition hereof.
Section 8.05. Notices. Except as expressly provided otherwise, all
notices, demands, consents, approvals and statements required or permitted
hereunder shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes when presented personally, three (3) days after
mailing by registered or certified mail, postage prepaid, or one (1) day after
delivery to a nationally recognized overnight courier service providing evidence
of the date of delivery, addressed to a party at its address on the signature
page hereof or of the applicable Assignment and Assumption Agreement, or at such
other address of which a party shall have notified the party giving such notice
in writing in accordance with the foregoing requirements.
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Section 8.06. Amendments and Waivers. No amendment or material waiver
of any provision of this Agreement or any other Loan Document, nor consent to
any material departure by Borrower or any Guarantor therefrom, shall in any
event be effective unless the same shall be in writing and signed by the party
against whom such amendment, waiver or consent is sought to be enforced (it
being understood, however, that the signatures of the Required Lenders and,
solely for purposes of its acknowledgement thereof, Administrative Agent, shall
be sufficient to bind Lenders to any such amendment, waiver or consent), and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all Lenders, do any of
the following: (i) reduce the principal of, or interest on, the Notes or any
fees due hereunder or any other amount due hereunder or under any other Loan
Document; (ii) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees due hereunder or under any other Loan
Document; (iii) change the definition of Required Lenders; (iv) release any
material portion of the Mortgaged Property or other collateral for the Loan
other than in accordance with the Loan Documents; (v) amend this Section or any
other provision requiring the consent of all Lenders; (vi) release, in whole or
in part, any Guarantor other than in accordance with the Loan Documents; or
(vii) increase the Loan Amount. Without limiting the foregoing, acceptance by
Administrative Agent or Lenders of any sum required to be paid pursuant hereto
or any other Loan Document, after its due date, or in an amount less than the
sum then due, shall not constitute a waiver by Administrative Agent or Lenders
of their right to require prompt payment when due of all other such sums or to
declare a default or to exercise such other rights provided herein or in the
other Loan Documents for such late or reduced payment.
All communications from Administrative Agent to Lenders requesting
Lenders' determination, consent, approval or disapproval (i) shall be given in
the form of a written notice to each Lender, (ii) shall be accompanied by or
include a description or copy of the matter or thing as to which such
determination, approval, consent or disapproval is requested and (iii) shall
include Administrative Agent's recommended course of action or determination in
respect thereof. Each Lender shall reply promptly, but in any event within ten
(10) Business Days (or five (5) Business Days with respect to any decision to
accelerate or stop acceleration of the Loan) after receipt of the request
therefor by Administrative Agent (the "Lender Reply Period"). Unless a Lender
shall give written notice to Administrative Agent that it objects to the
recommendation or determination of Administrative Agent (together with a written
explanation of the reasons behind such objection) within the Lender Reply
Period, such Lender shall be deemed to have approved or consented to such
recommendation or determination.
Section 8.07. Assignment; Participation. Any Non-Delinquent Lender may
at any time grant to one or more banks or other institutions not affiliated with
Borrower or Guarantor (each a "Participant") participating interests in its Pro
Rata Share of the Loan (the "Participations"). In the event of any such grant by
a Lender of a Participation to a Participant, such Lender shall remain
responsible for the performance of its obligations hereunder, and Borrower and
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations hereunder. Any agreement
pursuant to which any Lender may grant a Participation shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of Borrower hereunder and under any other Loan Document, including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement or any other Loan Document; provided that such
participation agreement may provide that such Lender will not agree to any
modification, amendment or waiver described in clauses (i) through (vii) of
Section 8.06 without the consent of the Participant.
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Upon request by Borrower, each Lender agrees to provide Borrower with
notice of all Participations sold by such Lender. Borrower agrees to provide all
assistance reasonably requested by a Lender to enable such Lender to sell
Participations as aforesaid, or make assignments of its interest in the Loan as
hereinafter provided in this Section.
A Lender may at any time assign to any Eligible Assignee not affiliated
with Borrower or Guarantor with the consent of Administrative Agent, which
consents shall not be unreasonably withheld or delayed (such assignee, a
"Consented Assignee"), or to one or more banks or other institutions which are
majority owned subsidiaries of a Lender or of the parent of a Lender (each
Consented Assignee or subsidiary bank or institution, an "Assignee") all or a
proportionate part of all of its rights and obligations under this Agreement and
its Note, and such Assignee shall assume rights and obligations, pursuant to an
Assignment and Assumption Agreement executed by such Assignee and the assigning
Lender, provided that, after giving effect to such assignment, in each case, the
Assignee's portion of the Loan and, in the case of a partial assignment of a
Lender's interest, the assigning Lender's portion of the Loan will each be equal
to or greater than $5,000,000. Upon (i) execution and delivery of such
instrument, (ii) payment by such Assignee to the assigning Lender of an amount
equal to the purchase price agreed between such Lender and such Assignee and
(iii) payment by such Assignee to Administrative Agent of a fee, for
Administrative Agent's own account, in the amount of $3,500, such Assignee shall
be a party to this Agreement and shall have all the rights and obligations of a
Lender as set forth in such Assignment and Assumption Agreement, and the
assigning Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this paragraph,
substitute notes, in the form of EXHIBIT D, shall be issued to the assigning
Lender (in the case of a partial assignment) and Assignee by Borrower, in
exchange for the return of the assigning Lender's original Note. All such
substitute notes shall constitute "Notes" and the obligations evidenced by such
substitute notes shall constitute obligations secured by the Mortgage. In
connection with Borrower's execution of substitute notes as aforesaid, Borrower
shall deliver to Administrative Agent such evidence of the due authorization,
execution and delivery of the substitute notes and any related documents as
Administrative Agent may reasonably request. If the Assignee is not incorporated
under the Laws of the United States or a state thereof, it shall, prior to the
first date on which interest or fees are payable hereunder for its account,
deliver to Borrower and Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 7.13.
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Borrower, Administrative Agent and Lenders shall execute such
modifications to the Loan Documents as shall, in the reasonable judgment of
Administrative Agent, be necessary or desirable in connection with assignments
in accordance with the foregoing provisions of this Section.
Any Lender may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Lender from its obligations hereunder.
Borrower recognizes that in connection with a Lender's selling of
Participations or making of assignments, any or all documentation, financial
statements, appraisals and other data, or copies thereof, relevant to Borrower,
Guarantor or the Loan may be exhibited to and retained by any such Participant
or Assignee or prospective Participant or Assignee.
Section 8.08. Setoff. In addition to (and without limitation of) any
right of setoff, bankers' lien or counterclaim Administrative Agent or any
Lender may otherwise have, Administrative Agent and each Lender shall be
entitled, but only with the prior consent of Administrative Agent, to offset
balances (general or special, time or demand, provisional or final) held by it
for the account of Borrower at any of Administrative Agent's or such Lender's
offices against any amount payable by Borrower to Administrative Agent or such
Lender hereunder or under any other Loan Document which is not paid when due
(regardless of whether such balances are then due to Borrower), in which case it
shall promptly notify Borrower and (in the case of a Lender) Administrative
Agent thereof; provided, however, that Administrative Agent's or such Lender's
failure to give such notice shall not affect the validity thereof. Payments by
Borrower hereunder or under the other Loan Documents shall be made without
setoff or counterclaim.
Section 8.09. Successors and Assigns. Except as herein provided, this
Agreement shall be binding upon and inure to the benefit of Borrower,
Administrative Agent and Lenders and their respective heirs, personal
representatives, successors and assigns. Notwithstanding the foregoing,
Borrower, without the prior written consent of Lender in each instance, may not
assign, transfer or set over to another, in whole or in part, all or any part of
its benefits, rights, duties and obligations hereunder, including, but not
limited to, performance of and compliance with conditions hereof and the right
to receive the proceeds of the Loan.
Section 8.10. Severability. The provisions hereof are intended to be
severable. Any provisions hereof, or the application thereof to any Person or
circumstance, which, for any reason, in whole or in part, is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof (or the remaining portions of such provision) or the
application thereof to any other Person or circumstance, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision (or portion thereof) or the application
thereof to any Person or circumstance in any other jurisdiction.
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Section 8.11. Non-Waiver; Remedies Cumulative. No failure or delay on
Lender's part in exercising any right, remedy, power or privilege (hereinafter
in this Section, each a "Remedy") hereunder or under any of the other Loan
Documents shall operate as a waiver of any such Remedy or shall be deemed to
constitute Administrative Agent's or any Lender's acquiescence in any default by
Borrower or Guarantor under any of said documents. A waiver by Administrative
Agent or any Lender of any Remedy hereunder or under any of the other Loan
Documents on any one occasion shall not be construed as a bar to any other or
future exercise thereof or of any other Remedy. The Remedies provided in said
documents are cumulative, may be exercised singly or concurrently and are not
exclusive of any Remedies provided therein or by Law.
Section 8.12. Certain Waivers. Borrower hereby irrevocably and
unconditionally waives (i) promptness and diligence, (ii) notice of any actions
taken by Administrative Agent or any Lender hereunder or under any other Loan
Document or any other agreement or instrument relating hereto or thereto except
to the extent otherwise provided herein, (iii) all other notices, demands and
protests, and all other formalities of every kind in connection with the
enforcement of Borrower's obligations hereunder and under the other Loan
Documents, the omission of or delay in which, but for the provisions of this
Section, might constitute grounds for relieving Borrower of any of its
obligations hereunder or under the other Loan Documents, (iv) any requirement
that Administrative Agent or any Lender protect, secure, perfect or insure any
lien on any collateral for the Loan or exhaust any right or take any action
against Borrower, Guarantor or any other Person or against any collateral for
the Loan, (v) any right or claim of right to cause a marshalling of Borrower's
assets and (vi) all rights of subrogation or contribution, whether arising by
contract or operation of law or otherwise by reason of payment by Borrower
pursuant hereto or to any other Loan Document. BORROWER FURTHER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH
RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY
AND EVERY RIGHT BORROWER MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY,
(Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM,
AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR
PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL
PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION
AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
Section 8.13. Expenses; Indemnification. The Loan shall be made without
cost to Lender. Borrower covenants and agrees to pay all costs, expenses and
charges (including, without limitation, all fees and charges of engineers,
appraisers, the Engineering Consultant and Administrative Agent's Counsel)
incurred by Administrative Agent or any Lender in connection with (i) the
preparation for and consummation of the transactions contemplated hereby or for
the performance hereof and of the other Loan Documents, and for any services
which may be required in addition to those normally and reasonably contemplated
hereby and (ii) the enforcement hereof or of any or all of the other Loan
Documents; provided, however, that Borrower shall not be responsible for (1) the
fees and expenses of legal counsel for Lenders other than Fleet incurred in
connection with said counsel's review of this Agreement and the other Loan
Documents prior to execution and (2) costs, expenses and charges incurred by
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Administrative Agent and Lenders in connection with the administration or
syndication of the Loan. If Borrower fails to pay promptly any costs, charges or
expense required to be paid by it as aforesaid, and Administrative Agent or any
Lender pays such costs, charges or expenses, Borrower shall reimburse
Administrative Agent or such Lender, as appropriate, on demand for the amounts
so paid, together with interest thereon at the Default Rate. Borrower further
agrees to indemnify Administrative Agent and each Lender and their respective
directors, officers, employees and agents from, and hold each of them harmless
against, (x) any and all losses arising out of or by reason of any investigation
or litigation or other proceedings (including any threatened investigation or
litigation or other proceedings) relating to any actual or proposed use by
Borrower of the proceeds of the Loan, including, without limitation, the fees
and disbursements of counsel incurred in connection with any such investigation,
litigation or other proceedings and (y) any and all claims, actions, suits,
proceedings, costs, expenses, losses, damages and liabilities of any kind,
including in tort, penalties and interest, arising out or by reason of any
matter relating, directly or indirectly, to the Mortgage or the ownership,
condition, development, construction, sale, rental or financing of the Property
or Improvements or any part thereof (but excluding any such losses, liabilities,
claims, damages or expenses incurred solely by reason of the gross negligence or
willful misconduct of the party to be indemnified). The obligations of Borrower
under this Section and under Sections 3.01, 3.03 and 6.08 shall survive the
repayment of all amounts due under or in connection with any of the Loan
Documents and the termination of the Loan.
Section 8.14. Gross-Up For Taxes. All payments made by Borrower under
the Note and other Loan Documents shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding income taxes and franchise or other taxes
(imposed in lieu of income taxes) imposed on Lender as a result of a present or
former connection between Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from Lender's
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or the Note). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") is required to be withheld from any amounts payable to
Lender under the Note or other Loan Documents, the amounts so payable to Lender
shall be increased to the extent necessary to yield to Lender (after payment of
all Non-Excluded Taxes) interest or any such other amounts payable with respect
to the Loan at the rates or in the amounts specified in the Note or other Loan
Documents. Whenever any Non-Excluded Taxes are payable by Borrower, as promptly
as possible thereafter Borrower shall send to Lender a certified copy of an
original official receipt received by Borrower showing payment thereof. If
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to Lender the required receipts or other required
documentary evidence, Borrower shall indemnify Lender for any incremental taxes,
interest or penalties that may become payable by Lender as a result of any such
failure. The agreements in this Section shall survive the termination of this
Agreement and the payment of the Note and all other amounts payable in respect
of the Loan.
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Section 8.15. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Agreement by signing any
such counterpart.
Section 8.16. Governing Law; Jurisdiction. This Agreement and the
rights and obligations of the parties hereunder shall in all respects be
governed by, and construed and enforced in accordance with, the Laws of the
State of New York (without giving effect to New York's principles of conflicts
of law). Borrower, Administrative Agent and each Lender hereby irrevocably
submit to the non-exclusive jurisdiction of any New York State or Federal court
sitting in The City of New York (or any county in New York State where any
portion of the Property is located) over any suit, action or proceeding arising
out of or relating to this Agreement, and Borrower hereby agrees and consents
that, in addition to any methods of service of process provided for under
applicable Law, all service of process in any such suit, action or proceeding in
any New York State or Federal court sitting in The City of New York (or such
other county in New York State) may be made by certified or registered mail,
return receipt requested, directed to Borrower at the address indicated on the
cover page hereof, and service so made shall be complete five (5) days after the
same shall have been so mailed.
Section 8.17. Integration. The Loan Documents constitute the entire
agreement among Administrative Agent, Borrower and Lenders relating to the
transactions contemplated thereby (except with respect to agreements among
Lenders or with Administrative Agent relating solely to compensation,
consideration and the syndication of the Loan) and supersede any prior oral or
written statements or agreements with respect to such transactions.
Section 8.18. Releases. Provided no Default or Event of Default exists,
Borrower shall have the right to obtain the release of any of the Properties
from the Mortgage encumbering the same, at Borrower's expense, so long as (i)
Borrower pays to Administrative Agent for the account of Lenders an amount equal
to the lesser of (x) the greater of (A) the Release Price for the Property that
is the subject of such release and (B) the amount necessary to reduce the Loan
to an amount which satisfies the DSC Test on the basis of Net Operating Income
from the parcels not being released or (y) the then outstanding principal amount
of the Loan, which amount shall be applied to the reduction of outstanding
principal under the Loan, (ii) Administrative Agent receives such reasonable
documentation as Administrative Agent shall request confirming that the amount
of any Additional Interest secured by the Mortgage encumbering the Property
which is being released shall be secured by the credit of Guarantor, and (iii)
Administrative Agent receives such other documents, opinions and assurances as
Administrative Agent may reasonably request. Upon any such release of a
Property, such Property shall no longer constitute a "Property" hereunder and
the Total Loan Commitment shall be reduced by the amount of the Release Price
for such Property.
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Section 8.19. Exculpation. Neither Borrower nor any Guarantor shall be
personally liable for payment of the principal of the Note or interest thereon,
and in the event of any failure by Borrower to pay any portion of such principal
or interest, Lenders will look, with respect to the then outstanding balance of
such principal and interest, solely to the Mortgaged Property and such other
collateral as has been, or hereafter shall be, given to secure payment of the
Note. The foregoing limitation on liability shall not impair or otherwise affect
the validity or enforceability of (a) the debt evidenced by the Note or the Loan
Agreement or of any other obligations evidenced by the Note, the Loan Agreement,
the Mortgage or any of the Loan Documents or (b) Lenders' liens, security
interests, rights and remedies (including, without limitation, the remedies of
foreclosure and/or sale) with respect to the Mortgaged Property or any other
property, security, collateral and/or assets (including the proceeds thereof)
encumbered, pledged or assigned by the Mortgages or any other security for the
Loan. In addition, the foregoing limitation on liability shall not limit
anyone's obligations or be applicable with respect to: (i) liability under any
guaranty(ies) or indemnity(ies) delivered or afforded to Lenders; (ii) any fraud
or material misrepresentation; (iii) taxes of any kind (whether characterized as
transfer, gains or other taxes) payable in connection with the foreclosure sale
of the Mortgaged Property, irrespective of who pays such taxes; (iv) application
of any proceeds of the Loan to any purpose other than as provided in the Loan
Documents; (v) the application of any insurance or condemnation proceeds or
other funds or payments other than strictly in accordance with the Loan
Documents; (vi) the misapplication of any security deposits; (vii) rents, sales
proceeds, or other sums received after default under the Loan Documents which
are not applied to expenses of operating the Mortgaged Property or paid to
Lenders or a duly appointed receiver of the Mortgaged Property; (viii) any
failure to deliver to Lenders, after demand therefor, any agreements relating to
the operation, management, leasing, use, occupancy or construction of the
Mortgaged Property; (ix) any intentional physical waste in respect of the
Mortgaged Property; (x) any failure to pay or discharge any real estate tax,
other tax, assessment, fine, penalty or lien against the Mortgaged Property to
the extent revenue from leases of the Mortgaged Property was available to pay
same; (xi) liability as landlord under any lease(s) relating to the Mortgaged
Property which liability accrued prior to Lenders' succeeding to such interest
of Borrower, which Lenders are or become obligated for by virtue of Lenders
succeeding to the interests of Borrower, provided, however, that such liability
shall only apply with respect to any liability of Borrower under such leases
which Lenders assumes pursuant to subordination, non-disturbance and attornment
agreements required pursuant to the terms of such leases; (xii) liability under
any agreement relating to the operation or maintenance of the Mortgaged Property
which liability accrued prior to Lenders' succeeding to such interest of
Borrower which Lenders are or become obligated for by virtue of Lenders
succeeding to the interests of Borrower, provided, however, that such liability
shall only apply with respect to agreements which are not terminable by their
terms upon thirty (30) days' written notice; (xiii) liability to pay for the
premiums on and keep in full force and effect insurance in respect of the
Mortgaged Property in accordance with the Loan Documents to the extent revenue
52
from leases of the Mortgaged Property was available to pay same; or (xiv)
liability for Hazardous Substances that may exist upon or be discharged from the
Mortgaged Property. Borrower and any Guarantor shall in any event be and shall
remain personally liable for each of the matters to which reference is made in
the preceding sentence and Lenders may seek, obtain and enforce one or more
money judgments in any appropriate proceeding(s) with respect thereto. The
limitation on personal liability contained in this paragraph shall become
automatically null and void and shall be of no further force or effect, and
Borrower and each Guarantor shall be and remain personally liable for payment of
the principal of the Note and interest thereon, in accordance with the terms and
provisions of this Loan Agreement, in the event that Borrower, or anyone acting
on behalf of Borrower, shall (A) file a petition or answer seeking any relief of
any kind under the bankruptcy laws of the United States (or if an Insolvency
Event shall otherwise occur), (B) assert in writing or in any legal proceedings
of any kind that any provisions of any of the Loan Documents are in whole or in
part unenforceable, invalid or not legally binding, or (C) fail fully to
cooperate with Lenders or a receiver in Lenders' or such receiver's efforts to
collect Rents directly from tenants after a default under the Loan Documents.
Section 8.20. Letters of Credit.
(a) Borrower, with the consent of Administrative Agent, may request, in
lieu of advances of proceeds of the Loan, that Administrative Agent issue
unconditional, irrevocable standby letters of credit (each, a "Letter of
Credit") for the account of Borrower. Promptly upon Borrower's request for, and
then upon issuance of, a Letter of Credit, Administrative Agent shall notify
each Lender.
(b) The amount of any Letter of Credit shall be limited to the amount
of proceeds of the Loan available to be advanced hereunder, it being understood
that the amount of each Letter of Credit issued and outstanding shall effect a
reduction, by an equal amount, of proceeds available to Borrower under the Loan.
Administrative Agent's issuance of each Letter of Credit shall be subject to
Borrower having satisfied all conditions precedent to its entitlement to an
advance of Loan proceeds. Each Letter of Credit shall expire no later than one
(1) month prior to the Maturity Date. If the Letter of Credit is returned
undrawn upon or expires without being drawn upon, then the amount of Loan
proceeds allocated to the Letter of Credit shall again become available to be
advanced with the terms hereof.
(c) In connection with, and as a further condition to the issuance of,
each Letter of Credit, Borrower shall execute and deliver to Administrative
Agent an application for the Letter of Credit on Administrative Agent's standard
form therefor, together with such other documents, opinions and assurances as
Administrative Agent shall reasonably require, and shall pay such fees as
Administrative Agent shall require.
(d) The parties hereto acknowledge and agree that, immediately upon
notice from Administrative Agent of any drawing under a Letter of Credit, each
Lender shall, notwithstanding the existence of a Default or Event of Default or
the non-satisfaction of any conditions precedent to the making of an advance of
the Loan, advance proceeds of the Loan, in an amount equal to its ratable share
(based upon the undisbursed amounts of the Lenders' respective Individual Loan
Commitments) of such drawing, which advance shall be made to Administrative
Agent to reimburse Administrative Agent, for its own account, for such drawing.
Borrower hereby irrevocably authorizes Lenders to make such advances. Each
Lender further acknowledges that its obligation to fund its share of drawings
under Letters of Credit as aforesaid shall survive the Lenders' termination of
this Agreement or enforcement of remedies hereunder or under the other Loan
Documents. In the event that any advance cannot for any reason be made on the
date otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under any applicable bankruptcy or insolvency Law
with respect to Borrower), then each Lender shall purchase (on or as of the date
such advance would otherwise have been made) from Administrative Agent a
participation interest in any unreimbursed drawing in an amount equal to its Pro
Rata Share of such unreimbursed drawing.
53
(e) Borrower agrees, upon the occurrence of an Event of Default and at
the written request of Administrative Agent, (i) to deposit with Administrative
Agent cash collateral in the amount of all the outstanding Letters of Credit,
which cash collateral shall be held by Administrative Agent as security for
Borrower's obligations in connection with the Letters of Credit and (ii) to
execute and deliver to Administrative Agent such documents as Administrative
Agent reasonably requests to confirm and perfect the assignment of such cash
collateral to Administrative Agent.
(f) In connection with each Letter of Credit, Borrower hereby covenants
to pay to Administrative Agent the following fees, payable quarterly in arrears
(on the first Business Day of each calendar quarter following the issuance of
the Letter of Credit): (1) a fee (the "Lenders L/C Fee") for the account of
Lenders, computed daily on the amount of the Letter of Credit issued and
outstanding at a per annum rate equal to 0.75% and (2) a fee (the "Fronting
Fee") for Administrative Agent's own account, computed daily on the amount of
the Letter of Credit issued and outstanding at a rate per annum equal to 0.15%.
It is understood and agreed that the last installment of the foregoing fees
provided for in this paragraph (f) with respect to any particular Letter of
Credit shall be due and payable on the first day of the calendar quarter
following the return, undrawn, or cancellation, of such Letter of Credit. In
addition, Borrower shall pay to Administrative Agent, Administrative Agent's
customary administrative fees in connection with the issuance, extension,
amendment and drawing of all Letters of Credit.
Section 8.21. Concerning Irrevocable Authorizations. Any and all
advances made at any time by Lenders pursuant to the irrevocable authorizations
granted by Section 8.20 shall require no further direction, authorization or
request for disbursement from Borrower and may be made whether or not there
exists a Default or Event of Default. Any and all such disbursements shall be
added to the outstanding principal balance evidenced by the Notes and shall be
secured by the Mortgage.
Section 8.22. Usury. Anything herein to the contrary notwithstanding,
the obligations of Borrower under this Agreement and the Notes shall be subject
to the limitation that payments of interest shall not be required to the extent
that receipt thereof would be contrary to provisions of Law applicable to a
Lender limiting rates of interest which may be charged or collected by such
Lender.
54
Section 8.23. Documentation Satisfactory. All documentation required
from or to be submitted on behalf of Borrower in connection with this Agreement
and the documents relating hereto shall be subject to the prior approval of, and
be satisfactory in form and substance to, Administrative Agent, its counsel and,
where specifically provided herein, Lenders. In addition, the persons or parties
responsible for the execution and delivery of, and signatories to, all of such
documentation, shall be acceptable to, and subject to the approval of,
Administrative Agent and its counsel.
[Remainder of page intentionally left blank]
55
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written, the execution hereof by
Borrower constituting a certification by the party or parties executing on its
behalf that the representations and warranties made in Article IV are true and
correct as of the date hereof and that each of them duly holds and is incumbent
in the position indicated under his or her name.
FLEET NATIONAL BANK, a Bank of America
company (as Lender and Administrative Agent)
By
-------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Address for notices and Applicable Lending Office:
Fleet National Bank, a Bank of America company
1185 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefax: 212/819-6294
THE BANK OF CHINA, NEW YORK BRANCH (as Lender)
By
-------------------------------------------------
Name:
Title:
Address for notices and Applicable Lending Office:
The Bank of China, New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇ ▇▇▇▇
Telefax: 212/658-0919
RD ABSECON ASSOCIATES, L.P., a Delaware
limited partnership
By: RD Absecon, Inc., a Delaware corporation,
its general partner
By
--------------------------------------------
Name:
Title:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Acadia Property Holdings, LLC, its general
partner
By: Acadia Realty Limited Partnership,
its sole member
By: Acadia Realty Trust, its
general partner
By
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.P., a Delaware
limited partnership
By: Acadia Property Holdings, LLC, its general
partner
By: Acadia Realty Limited Partnership,
its sole member
By: Acadia Realty Trust, its
general partner
By
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
RD VILLAGE ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Acadia Property Holdings, LLC, its general
partner
By: Acadia Realty Limited Partnership,
its sole member
By: Acadia Realty Trust, its
general partner
By
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
RD WOONSOCKET ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Acadia Property Holdings, LLC, its general
partner
By: Acadia Realty Limited Partnership,
its sole member
By: Acadia Realty Trust, its
general partner
By
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
Address for notices for all Borrowers:
c/o Acadia Realty Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
The undersigned joins in the execution and authorizes the
delivery of this Loan Agreement for the purpose of accepting and agreeing to the
provisions of Section 5.20, Section 6.06, Section 6.11 and Section 8.19 hereof.
ACADIA REALTY LIMITED PARTNERSHIP
By: Acadia Realty Trust, a Maryland real estate
investment trust, its general partner
By
--------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
EXHIBIT A
Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of ____________, 200__,
among [NAME OF ASSIGNING BANK] ("Assignor") and [NAME OF ASSIGNEE] ("Assignee").
Preliminary Statement
1. This Assignment and Assumption Agreement (this "Agreement") relates
to the Revolving Loan Agreement (as the same may be amended from time to time,
the "Loan Agreement") dated ____________, 200__ among _________________________
("Borrower"), the lender(s) party thereto (each a "Lender" and, collectively,
"Lenders") and _________________________, as administrative agent
("Administrative Agent"). All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Loan Agreement.
2. Subject to the terms and conditions set forth in the Loan Agreement,
Assignor has made an Individual Loan Commitment to Borrower in an aggregate
principal amount of $____________ ("Assignor's Loan Commitment").
3. The aggregate outstanding principal amount under Assignor's Loan
Commitment at the commencement of business on the date hereof is $____________.
4. Assignor desires to assign to Assignee all of the rights of Assignor
under the Loan Agreement in respect of a portion of Assignor's Loan Commitment
and the loan made pursuant thereto, such portion being in an amount equal to
$____________ (the "Assigned Loan and Commitment"), of which $____________ is
currently outstanding and $____________ is still to be disbursed to Borrower
pursuant to the Loan Agreement; and Assignee desires to accept assignment of
such rights and assume the corresponding obligations from Assignor on such
terms.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Assignment. Assignor hereby assigns and sells to Assignee
all of the rights of Assignor under the Loan Agreement in and to the Assigned
Loan and Commitment, and Assignee hereby accepts such assignment from Assignor
and assumes all of the obligations of Assignor under the Loan Agreement with
respect to the Assigned Loan and Commitment, including, without limitation,
Assignor's obligations with respect to the undisbursed portion, if any, thereof.
Upon the execution and delivery hereof by Assignor, Assignee, Administrative
Agent and the payment of the amount specified in Section 2 hereof required to be
paid on the date hereof, (1) Assignee shall, as of the commencement of business
on the date hereof, succeed to the rights and obligations of a Lender under the
Loan Agreement with an Individual Loan Commitment in an amount equal to the
Assigned Loan and Commitment, and (2) the Individual Loan Commitment of Assignor
shall, as of the commencement of business on the date hereof, be reduced
correspondingly and Assignor released from its obligations under the Loan
Agreement to the extent such obligations have been assumed by Assignee. Assignor
represents and warrants that it (x) owns the Assigned Loan and Commitment free
and clear of all liens and other encumbrances and (y) is legally authorized to
enter into and perform this Agreement. Except as provided in the immediately
preceding sentence, the assignment provided for herein shall be without
representation or warranty by, or recourse to, Assignor.
SECTION 2. Payments. As consideration for the assignment and sale
contemplated in Section 1 hereof, Assignee shall pay to Assignor on the date
hereof, in immediately available funds, an amount equal to the outstanding
principal amount under the Assigned Loan and Commitment recited in paragraph 4
of the Preliminary Statement above. Each of Assignor and Assignee hereby agrees
that if it receives any amount under the Loan Agreement which is for the account
of the other party hereto, it shall receive the same for the account of such
other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
SECTION 3. Consent; Execution and Delivery of Note. This Agreement is
conditioned upon the consent of Administrative Agent. The execution of this
Agreement and Administrative Agent is evidence of this consent; [CONSENTS NOT
REQUIRED FOR CERTAIN ASSIGNMENTS TO ENTITIES RELATED TO A LENDER.] Pursuant to
Section 8.07 of the Loan Agreement, Borrower has agreed to execute and deliver
Notes payable to the respective orders of Assignee and Assignor to evidence the
assignment and assumption provided for herein. Assignee has designated as its
Applicable Lending Office, and as its address for notices, the office identified
as such below.
SECTION 4. Non-Reliance on Assignor. Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of Borrower or any other
party to any Loan Document, or the validity and enforceability of the
obligations of Borrower or any other party to a Loan Document in respect of the
Loan Agreement or any other Loan Document. Assignee acknowledges that it has,
independently and without reliance on Assignor, and based on such documents and
information as it has deemed appropriate, made its own analysis of the
collateral for the Loan, credit analysis of Borrower and Guarantor and decision
to enter into this Agreement and will continue to be responsible for making its
own independent appraisal of the collateral for the Loan and of the business,
affairs and financial condition of Borrower and the other parties to the Loan
Documents.
SECTION 5. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the Laws of the State of New York
(without giving effect to New York's principles of conflicts of law).
2
SECTION 6. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 7. Certain Representations and Agreements by Assignee. Assignee
represents that it is legally authorized to enter into and perform this
Agreement. In addition, Assignee hereby represents that it is entitled to
receive any payments to be made to it under the Loan Agreement or hereunder
without the withholding of any tax and agrees to furnish the evidence of such
exemption as specified therein and otherwise to comply with the provisions of
Section 7.13 of the Loan Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By
------------------------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By
------------------------------------------------
Name:
Title:
Assignee's Applicable Lending Office and Address
for Notices:
[Assignee]
[Address]
Attention: _______________
Telephone: (___) ________
[NAME OF ADMINISTRATIVE AGENT]
By
------------------------------------------------
Name:
Title:
[NAME OF BORROWER]
By
------------------------------------------------
Name:
Title:
3
EXHIBIT B
Notice-of-Assignment of Lease
(On Letterhead of Borrower)
__________, 200_
[Name and Address of Tenant]
Re: Lease Dated:
Lender:
Address of Lender:
Mortgage Dated:
Dear Sir/Madam:
The undersigned has assigned by a mortgage or deed of trust (the
"Mortgage") dated as shown above to the Lender identified above (hereinafter
"Lender") all its estate, right, title and interest in, to and under the Lease
between you and the undersigned dated as set forth above, as said Lease may have
been heretofore modified or amended (the "Lease"), together with all right,
title and interest of the undersigned as lessor thereunder, including, without
limitation, the right upon the occurrence of an Event of Default (as defined in
the Mortgage) to collect and receive all earnings, revenues, rents, issues,
profits and income of the property subject to the Mortgage.
[CERTAIN PROVISIONS OF THE MORTGAGE, THE TEXT OF WHICH ARE ATTACHED
HERETO, RESTRICT SOME OF THE UNDERSIGNED'S RIGHTS UNDER THE LEASE. HOWEVER,
S][S]aid assignment does not impair or diminish any of our obligations to you
under the provisions of the Lease, nor are any such obligations imposed upon
Lender, its successors or assigns.
Pursuant to said assignment you are hereby notified that in the event
of a demand on you by Lender or its successors and assigns for the payment to it
of the rents due under the Lease, you may, and are hereby authorized and
directed to, pay said rent to Lender and we hereby agree that the receipt by you
of such a demand shall be conclusive evidence of Lender's right to the receipt
thereof and that the payment of the rents by you to Lender pursuant to such
demand shall constitute performance in full of your obligation under the Lease
for the payment of rent to the undersigned.
-----------------------
NOTE: To be sent in accordance with notice requirements of the Lease.
* To be used if property located in New York
Kindly indicate your receipt of this letter and your agreement to the
effect set forth below by signing the enclosed copy thereof and mailing it to
Lender at its address identified above to the attention of its Real Estate
Finance Office.
[BORROWER]
By
---------------------------------------
Name:
Title:
The undersigned acknowledges receipt of the original of this letter and
agrees for the benefit of Lender that it shall notify Lender of any default on
the part of the landlord under the Lease which would entitle the undersigned to
cancel the Lease or to ▇▇▇▇▇ the rent payable thereunder, and further agrees
that, notwithstanding any provision of the Lease, no notice of cancellation
thereof, nor of any abatement, shall be effective unless Lender has received the
notice aforesaid and has failed within 30 days of the date thereof to cure, or
if the default cannot be cured within 30 days has failed to commence and to
diligently prosecute the cure, of landlord's default which gave rise to the
right to cancel or ▇▇▇▇▇.
[NAME OF TENANT]
By
---------------------------------------
-----------------------------,
its authorized officer
2
EXHIBIT C
Required Contents of Borrower's Counsel Opinion
(1) If Borrower, the mortgagor or grantor under the Mortgage (if
different from Borrower), Guarantor or any general partner or member of any of
them is a corporation, partnership, venture, limited liability company or trust,
each such entity is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation, is qualified to do business (or
such opinion shall specifically state that such qualification is not required)
and is in good standing in the jurisdiction in which the Property is located,
and has full power and authority to consummate the transactions contemplated by
the Loan Documents and to execute, deliver and perform all Loan Documents to
which it is a party.
(2) There are no actions, suits or proceedings pending or threatened
against or affecting Borrower, Guarantor, the Mortgaged Property, the validity
or enforceability of the Mortgage or the priority of the lien thereof at law, in
equity or before or by any Governmental Authorities except actions, suits or
proceedings which have been disclosed to Lender in writing and which are fully
covered by insurance or would, if adversely determined, not substantially impair
the ability of Borrower or Guarantor to pay when due any amounts which may
become payable under the Note or Guaranty or to otherwise pay and perform their
respective obligations in connection with the Loan; neither Borrower nor
Guarantor is in default with respect to any order, writ, injunction, decree or
demand of any court or Governmental Authorities.
(3) The consummation of the transactions contemplated by and the
performance of the Loan Documents have not resulted and will not result in any
breach of, or constitute a default under, any mortgage, deed of trust, lease,
bank loan or credit agreement, corporate charter, by-laws, partnership agreement
or other instrument to which Borrower or Guarantor is a party or by which either
of them may be bound or affected.
(4) There exist no violations of any laws, statutes, ordinances, rules,
orders, regulations or requirements of any Governmental Authorities with respect
to the Improvements and that the use thereof complies with all applicable zoning
and other laws, etc. and with all restrictions, covenants, leases and easements
affecting the Mortgaged Property.
(5) The Property is not part of a larger tract of land owned by
Borrower, its affiliates or Guarantor, or otherwise considered as part of one
zoning or tax lot, or, if they are, that any authorization or variance required
for the subdivision of such larger tract which a sale of the Property would
entail has been obtained from all appropriate Governmental Authorities so that
the Property and Improvements constitute one zoning or tax lot (including
parking and utility facilities and street access, if relevant) capable of being
conveyed as such.
4
Required Contents of Borrower's Local Counsel Opinion (and, if required by
Lender, of a local counsel selected by Lender or its counsel)
(1) The Loan Documents have each been duly authorized, executed and
delivered by the parties thereto (other than Lender) and, under the laws of the
jurisdiction in which the Property is located (were such laws to apply), are
valid and binding instruments enforceable against such parties in accordance
with their respective terms, subject, however, to the qualifications that (a)
some of the rights and remedies set forth in the Note and Mortgage may be
limited by bankruptcy, insolvency, reorganization and other laws of general
application to the enforcement of creditors' rights and (b) certain remedies and
waivers contained in the Mortgage may be limited by applicable laws of said
jurisdiction, none of which qualifications will materially interfere with the
practical realization of the benefits and security provided by said documents
except for the economic consequences of any procedural delay which may result
therefrom.
(2) Considering the significant relationship that the State of New York
has to the Loan, the courts of the jurisdiction in which the Property is located
will, in all likelihood, honor any designations by the parties of New York as
the governing law contained in the Loan Documents.
(3) The Mortgage will create the lien it purports to create on the
property covered by the Mortgage and will effectively assign the leases
purported to be assigned thereby if the Mortgage and any necessary UCC-1
financing statements are recorded or filed, as the case may be, and specifying
local law requirements as to (1) the manner in which, and offices where, such
recording and filing must be made and (2) the re-recording of the Mortgage and
refiling of the financing statements, all in order to establish, preserve and
protect such lien and assignment and Lender's interest in the property covered
by the Mortgage.
(4) In the event of a foreclosure or other method of enforcement of the
remedies provided for in the Mortgage, any leases of the Mortgaged Property
will, at the option of the holder of the Mortgage, remain in full force and
effect between the lessees thereunder and such holder or any purchaser of the
Mortgaged Property pursuant to such remedial action. The opinion shall state
whether the foregoing results as a matter of law or by reason of compliance with
Section 1.14(c) of the Mortgage.
(5) All rights of redemption in respect of the Mortgage will be
extinguished upon the consummation of a sale of the Mortgaged Property pursuant
to any remedial provisions provided for in the Mortgage, [or if the foregoing is
not the case, the opinion shall specify the period of time which must expire
following such consummation in order for said rights of redemption to be
extinguished under local law, and shall state whether the applicable result
obtains as a matter of law or pursuant to any waiver provided for in the
Mortgage].
2
(6) There are no changes or additions to the Mortgage and other Loan
Documents which are required by local law, and none which are customary in local
practice and which would not unsubstantially enhance the rights and benefits of
Lender thereunder.
(7) To such other effects as Lender or its counsel may reasonably
require.
3
EXHIBIT D
Note
$____________ New York, New York
____________, 200__
For value received, RD ABSECON ASSOCIATES, L.P., a Delaware limited
partnership ("RD Absecon"), ▇▇ ▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, LIMITED PARTNERSHIP, a
Delaware limited partnership ("▇▇ ▇▇▇▇▇▇▇▇▇▇"), ▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.P., a
Delaware limited partnership ("▇▇ ▇▇▇▇▇▇"), RD VILLAGE ASSOCIATES LIMITED
PARTNERSHIP ("RD Village"), a Delaware limited partnership and RD WOONSOCKET
ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership ("RD Woonsocket";
RD Absecon, ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, RD Village and RD Woonsocket, collectively
and individually, as the context requires, "Maker") hereby covenant and promise
to pay to the order of [NAME OF LENDER], or its successors or assigns
(collectively, "Lender"), at the principal office of FLEET NATIONAL BANK, a Bank
of America company, located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("Administrative Agent") for the account of the Applicable Lending Office
of Lender, the principal sum of _________________________ Dollars
($____________) or, if less, the amount loaned by the Lender under its Loan to
Borrower pursuant to the Loan Agreement (as defined below) and actually
outstanding, in lawful money of the United States and in immediately available
funds, in accordance with the terms set forth in the Loan Agreement. Maker also
covenants and promises to pay interest on the unpaid principal balance hereof,
for the period such balance is outstanding, in like money, at said office for
the account of said Applicable Lending Office, at the time and at a rate per
annum as provided in the Loan Agreement (as defined below). Any amount or
principal hereof which is not paid when due, whether at stated maturity, by
acceleration, or otherwise, shall bear interest from the date when due until
said principal amount is paid in full, payable on demand, at the Default Rate.
The date and amount of each advance of the Loan made by Lender to
Borrower under the Loan Agreement referred to below, and each payment of said
Loan, shall be recorded by Lender on its books and, prior to any transfer of
this Note (or, at the discretion of Lender, at any other time), may be endorsed
by Lender on the schedule attached hereto and any continuance thereof.
This Note is one of the Notes referred to in the Revolving Loan
Agreement dated as of the date hereof (as the same may be amended or
supplemented from time to time, the "Loan Agreement") among Maker, as Borrower,
the lenders named therein (including Lender), as Lenders, and Administrative
Agent, as Administrative Agent for Lenders. All of the terms, conditions and
provisions of the Loan Agreement are hereby incorporated by reference. All
capitalized terms used herein and not defined herein shall have the meanings
given to them in the Loan Agreement.
This Note is secured by the various Mortgages which contain, among
other things, provisions for the prepayment of and acceleration of this Note
upon the happening of certain stated events. Reference to such of the Mortgages
is hereby made for a description of the "Mortgaged Property" encumbered thereby
and the rights of Maker and Lenders (including Lender) with respect to such
Mortgaged Property.
Maker agrees that it shall be bound by any agreement extending the time
or modifying the terms of payment set forth above and in the Loan Agreement,
made by or on behalf of Lenders and the owner or owners of the Mortgaged
Property, whether with or without notice to Maker, and Maker shall continue
liable to pay the amount due hereunder in accordance with the terms set forth
herein and in the Loan Agreement, but with interest at a rate no greater than
the rate of interest provided therein, according to the terms of any such
agreement of extension or modification.
Should the indebtedness represented by this Note or any part thereof be
collected at law or in equity, or in bankruptcy, receivership or any other court
proceeding (whether at the trial or appellate level), or should this Note be
placed in the hands of attorneys for collection upon default, Maker agrees to
pay, in addition to the principal, interest and other sums due and payable
hereon, all costs of collecting or attempting to collect this Note, including
reasonable attorneys' fees and expenses.
All parties to this Note, whether principal, surety, guarantor or
endorser, hereby waive presentment for payment, demand, protest, notice of
protest and notice of dishonor.
This Note shall be governed by the Laws of the State of New York
(without giving effect to New York's principles of conflicts of law), provided
that, as to the maximum lawful rate of interest which may be charged or
collected, if the Laws applicable to Lender permit it to charge or collect a
higher rate than the Laws of the State of New York, then such Law applicable to
Lender shall apply to Lender under this Note.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the date first above written.
[NAME OF BORROWER]
By
-------------------------------------
Name:
Title:
2
---------------------------------------------------------------------------------------------------------
Amount Amount Balance
Date of Advance of Payment Outstanding Notation By
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
3
EXHIBIT E-1
FINANCIAL COVENANT COMPLIANCE CERTIFICATE
This Certificate is furnished pursuant to Section 6.11(3) of
that certain Revolving Loan Agreement (the "Loan Agreement") by and among RD
ABSECON ASSOCIATES, L.P., ▇▇ ▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, LIMITED PARTNERSHIP, ▇▇
▇▇▇▇▇▇ ASSOCIATES, L.P., RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP and RD
WOONSOCKET ASSOCIATES LIMITED PARTNERSHIP (collectively and individually, as the
context requires, "Borrower") and FLEET NATIONAL BANK, a Bank of America company
(in its individual capacity and not as Administrative Agent, "Fleet"), THE BANK
OF CHINA, NEW YORK BRANCH ("Bank of China") and Fleet, in its capacity as
Administrative Agent, Section 6.11(3) of which Loan Agreement was agreed to and
acknowledged by ACADIA REALTY LIMITED PARTNERSHIP ("Guarantor"). Capitalized
terms used in this Certificate and Schedule 1 attached hereto, unless otherwise
defined herein or in said Schedule 1, have the meanings given to them in the
Loan Agreement.
The undersigned, the ____________________ of Guarantor, hereby
certifies to Lender that Schedule 1 attached hereto sets forth the financial
data and computations relating to Guarantor's compliance with the Liquidity
Requirement, which data and computations, to the best knowledge and belief of
the undersigned, are true, complete and correct.
The undersigned certifies that he/she is authorized to execute
and deliver this Certificate on behalf of Guarantor.
WITNESS my hand this _____ day of _______________, ____.
-----------------------------------------
Name:
EXHIBIT E-2
FINANCIAL COVENANT COMPLIANCE CERTIFICATE
This Certificate is furnished pursuant to Section 6.11(3) of
that certain Revolving Loan Agreement ("Loan Agreement") by and among RD ABSECON
ASSOCIATES, L.P., ▇▇ ▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, LIMITED PARTNERSHIP, ▇▇ ▇▇▇▇▇▇
ASSOCIATES, L.P., RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP and RD WOONSOCKET
ASSOCIATES LIMITED PARTNERSHIP (collectively and individually, as the context
requires, "Borrower") and FLEET NATIONAL BANK, a Bank of America company (in its
individual capacity and not as Administrative Agent, "Fleet"), THE BANK OF
CHINA, NEW YORK BRANCH ("Bank of China") and Fleet, in its capacity as
Administrative Agent, Section 6.11(3) of which Loan Agreement was agreed to and
acknowledged by ACADIA REALTY LIMITED PARTNERSHIP ("Guarantor"). Capitalized
terms used in this Certificate and Schedule 1 attached hereto, unless otherwise
defined herein or in said Schedule 1, have the meanings given to them in the
Loan Agreement.
The undersigned, the ____________________ of Guarantor, hereby
certifies to Lender that Schedule 1 attached hereto sets forth the audited
financial data and computations relating to Guarantor's compliance with the Net
Worth Requirement and the Liquidity Requirement, which data and computations, to
the best knowledge and belief of the undersigned, are true, complete and
correct.
The undersigned certifies that he/she is authorized to execute
and deliver this Certificate on behalf of Guarantor.
WITNESS my hand this _____ day of _______________, ____.
----------------------------------------
Name:
2
EXHIBIT F
AUTHORIZATION LETTER
May ___, 2005
[Name and address of Administrative Agent]
Re: Revolving Loan Agreement dated as of May ___, 2005
(the "Loan Agreement"; capitalized terms not
otherwise defined herein shall have the meanings
ascribed to such terms in the Loan Agreement) among
us, as Borrower, the Lenders named therein, and you,
as Administrative Agent for said Lenders
-----------------------------------------------------
Dear Sir/Madam:
In connection with the captioned Loan Agreement, we hereby designate
any of the following persons to give to you instructions, including notices
required pursuant to the Loan Agreement, orally, by telephone or teleprocess, or
in writing:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Instructions may be honored on the oral, telephonic, teleprocess or
written instructions of anyone purporting to be any one of the above designated
persons even if the instructions are for the benefit of the person delivering
them. We will furnish you with written confirmation of each such instruction
signed by any person designated above (including any telecopy which appears to
bear the signature of any person designated above) on the same day that the
instruction is provided to you, but your responsibility with respect to any
instruction shall not be affected by your failure to receive such confirmation
or by its contents.
You and Lenders shall be fully protected in, and shall incur no
liability to us for, acting upon any instructions which you in good faith
believe to have been given by any person designated above, and in no event shall
you or Lenders be liable for special, consequential or punitive damages. In
addition, we agree to hold you and Lenders and your and their respective agents
harmless from any and all liability, loss and expense arising directly or
indirectly out of instructions that we provide to you in connection with the
Loan Agreement except for liability, loss or expense occasioned by your gross
negligence or willful misconduct.
Upon notice to us, you may, at your option, refuse to execute any
instruction, or part thereof, without incurring any responsibility for any loss,
liability or expense arising out of such refusal if you in good faith believe
that the person delivering the instruction is not one of the persons designated
above or if the instruction is not accompanied by an authentication method that
we have agreed to in writing.
We will promptly notify you in writing of any change in the persons
designated above and, until you have actually received such written notice and
have had a reasonable opportunity to act upon it, you are authorized to act upon
instructions, even though the person delivering them may no longer be
authorized.
Very truly yours,
[BORROWERS]
By
-------------------------------------
Name:
Title:
2
EXHIBIT G
SOLVENCY CERTIFICATE
The person executing this certificate is the Senior Vice President
and/or Chief Financial Officer of Acadia Realty Trust, the General Partner of
Acadia Realty Limited Partnership, sole member of Acadia Property Holdings, LLC,
the General Partner of RD _______________, a ____________ ("Borrower"), and is
familiar with its properties, assets and businesses, and is duly authorized to
execute this certificate on behalf of Borrower pursuant to Section 4.01(2) of
the Revolving Loan Agreement dated the date hereof (the "Loan Agreement") among
Borrower along with certain affiliated co-borrowers, the lenders party thereto
(each a "Lender" and collectively, "Lenders") and Fleet National Bank, a Bank of
America company, as administrative agent for Lenders (in such capacity, together
with its successors in such capacity, "Administrative Agent"). In executing this
Certificate, such person is acting solely in his or her capacity as the Senior
Vice President and/or Chief Financial Officer of Borrower, and not in his or her
individual capacity. Unless otherwise defined herein, terms defined in the Loan
Agreement are used herein as therein defined.
The undersigned further certifies that he has carefully reviewed the
Loan Agreement and the other Loan Documents and the contents of this Certificate
and, in connection herewith, has made such investigation and inquiries as he
deems reasonably necessary and prudent therefor. The undersigned further
certifies that the financial information and assumptions which underlie and form
the basis for the representations made in this Certificate were reasonable when
made and were made in good faith and continue to be reasonable as of the date
hereof.
The undersigned understands that Administrative Agent and Lenders are
relying on the truth and accuracy of this Certificate in connection with the
transactions contemplated by the Loan Agreement.
The undersigned certifies that Borrower is Solvent.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
May 26, 2005.
-----------------------------------------
By
---------------------------------------
Name:
Title:
SCHEDULE A
Annual Loan Amount Reduction/
Payment Date Amortization Payment
------------ -----------------------------
June 1, 2006 $850,000
June 1, 2007 920,000
June 1, 2008 1,000,000
June 1, 2009 1,080,000
June 1, 2010 1,175,000
June 1, 2011 1,265,000
June 1, 2012 1,375,000
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION....................................1
Section 1.01. Definitions..............................................................1
Section 1.02. Accounting Terms........................................................12
Section 1.03. Computation of Time Periods.............................................12
Section 1.04. Rules of Construction...................................................13
ARTICLE II THE LOAN................................................................13
Section 2.01. Generally...............................................................13
Section 2.02. Nature of Lenders' Obligations..........................................13
Section 2.03. Purpose.................................................................13
Section 2.04. Advances................................................................14
Section 2.05. Procedure for Advance...................................................14
Section 2.06. Notes...................................................................14
Section 2.07. Payments and Distributions; Certain Consequences of
Delinquent Lender Status................................................15
Section 2.08. Interest................................................................16
Section 2.09. Limitation on Number of Interest Periods................................17
Section 2.10. Conversions of Interest Rate............................................17
Section 2.11. Inapplicability of LIBO Based Rate......................................17
Section 2.12. Late Payment Premium....................................................18
Section 2.13. Voluntary Prepayments...................................................18
Section 2.14. Annual Commitment Reduction/Required Amortization.......................18
Section 2.15. Nature of Lenders' Obligations; Borrower's Rights and
Obligations in Event a Lender Fails to Make an
Advance.................................................................18
ARTICLE III YIELD MAINTENANCE ETC...................................................19
Section 3.01. Additional Costs and Other Effects of Regulatory Changes; Taxes.........19
Section 3.02. Limitations on Availability of LIBO Based Rate..........................20
Section 3.03. Certain Compensation....................................................20
Section 3.04. "Lender" to Include Participants........................................21
ARTICLE IV CONDITIONS PRECEDENT....................................................21
Section 4.01. Conditions Precedent to Loan............................................21
Section 4.02. Conditions to Advances After the Initial Advance........................25
ARTICLE V REPRESENTATIONS AND WARRANTIES..........................................26
Section 5.01. Due Formation, Power and Authority......................................26
Section 5.02. Legally Enforceable Agreements..........................................27
Section 5.03. Financial Statements....................................................27
i
Page
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Section 5.04. Compliance With Laws; Payment of Taxes..................................27
Section 5.05. Litigation..............................................................27
Section 5.06. No Conflicts or Defaults................................................27
Section 5.07. Solvency................................................................27
Section 5.08. Governmental Regulation.................................................28
Section 5.09. Insurance...............................................................28
Section 5.10. ERISA...................................................................28
Section 5.11. Other Documents.........................................................28
Section 5.12. No Defaults.............................................................28
Section 5.13. Accuracy of Information; Full Disclosure................................28
Section 5.14. Separate Tax and Zoning Lot.............................................29
Section 5.15. The Improvements........................................................29
Section 5.16. Utility Services........................................................29
Section 5.17. Creation of Liens.......................................................29
Section 5.18. Roads...................................................................29
Section 5.19. Requisition as Reaffirmation............................................29
Section 5.20. Patriot Act.............................................................29
ARTICLE VI COVENANTS OF BORROWER...................................................30
Section 6.01. Compliance with Laws; Payment of Taxes..................................30
Section 6.02. Leases and Premises Documents...........................................31
Section 6.03. Inspection Fee..........................................................31
Section 6.04. Continuing Accuracy of Representations and Warranties...................31
Section 6.05. Covenants, Restrictions and Easements...................................31
Section 6.06. Financial Covenants.....................................................31
Section 6.07. Payment of Costs........................................................31
Section 6.08. Brokers.................................................................32
Section 6.09. Correction of Defects...................................................32
Section 6.10. Unused Fee..............................................................32
Section 6.11. Reporting and Miscellaneous Document Requirements.......................32
Section 6.12. Specified Environmental Matters.........................................34
ARTICLE VII ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS...........................35
Section 7.01. Appointment, Powers and Immunities of Administrative Agent..............35
Section 7.02. Reliance by Administrative Agent........................................36
Section 7.03. Defaults................................................................36
Section 7.04. Rights of Administrative Agent as Lender................................36
Section 7.05. Sharing of Costs by Lenders; Indemnification of Administrative Agent....37
Section 7.06. Non-Reliance on Administrative Agent and Other Lenders..................37
Section 7.07. Failure of Administrative Agent to Act..................................38
Section 7.08. Resignation or Removal of Administrative Agent..........................38
ii
Page
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Section 7.09. Amendments Concerning Agency Function...................................39
Section 7.10. Liability of Administrative Agent.......................................39
Section 7.11. Transfer of Agency Function.............................................39
Section 7.12. Non-Receipt of Funds by Administrative Agent; Adjustments...............39
Section 7.13. Withholding Taxes.......................................................40
Section 7.14. Sharing of Payments among Lenders.......................................40
Section 7.15. Possession of Documents.................................................40
Section 7.16. Effect of a Lender's Failure to Make an Advance.........................40
Section 7.17. Cure by Delinquent Lender...............................................43
Section 7.18. Delinquent Lender Not Excused...........................................43
Section 7.19. Notices Regarding Delinquent Lender.....................................44
Section 7.20. Replacement Lender......................................................44
ARTICLE VIII GENERAL CONDITIONS AND PROVISIONS.......................................45
Section 8.01. Disbursement Not Waiver.................................................45
Section 8.02. No Third-Party Beneficiaries............................................45
Section 8.03. Documentation Etc. Satisfactory.........................................45
Section 8.04. Lender's Determination Conclusive.......................................45
Section 8.05. Notices.................................................................45
Section 8.06. Amendments and Waivers..................................................46
Section 8.07. Assignment; Participation...............................................46
Section 8.08. Setoff..................................................................48
Section 8.09. Successors and Assigns..................................................48
Section 8.10. Severability............................................................48
Section 8.11. Non-Waiver; Remedies Cumulative.........................................49
Section 8.12. Certain Waivers.........................................................49
Section 8.13. Expenses; Indemnification...............................................49
Section 8.14. Gross-Up For Taxes......................................................50
Section 8.15. Counterparts............................................................51
Section 8.16. Governing Law; Jurisdiction.............................................51
Section 8.17. Integration.............................................................51
Section 8.18. Releases................................................................51
Section 8.19. Exculpation.............................................................52
Section 8.20. Letters of Credit.......................................................53
Section 8.21. Concerning Irrevocable Authorizations...................................54
Section 8.22. Usury...................................................................54
Section 8.23. Documentation Satisfactory..............................................55
iii
EXHIBITS Page
-------- ----
A Assignment and Assumption Agreement
B Lease Assignment Letter
C Contents of Opinion Letters
D Note
E-1 Quarterly Financial Covenant Compliance Certificate
E-2 Annual Financial Covenant Compliance Certificate
F Authorization Letter
G Solvency Certificate
iv