MANUFACTURERS AND TRADERS TRUST COMPANY,
TD BANK, N.A.
REGIONS BANK
CITIZENS BANK OF PENNSYLVANIA
RAYMOND JAMES BANK, FSB
TRISTATE CAPITAL BANK
and any other Lenders, if any, which may become parties to this Agreement (“Lenders”)
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1. BACKGROUND | 1 | |||
1.1 Defined Terms | 1 | |||
1.2 Borrower | 1 | |||
1.3 Use of Loan Proceeds | 1 | |||
1.4 Guaranties | 2 | |||
1.5 Loan | 2 | |||
2. LOAN PROVISIONS | 2 | |||
2.1 General Loan Provisions | 2 | |||
2.2 Term of Loan | 4 | |||
2.3 Interest Rate and Payment Terms | 6 | |||
2.4 Loan Fees; Administrative Agent’s Fees | 10 | |||
2.5 Acceleration | 10 | |||
2.6 Additional Provisions Related to Interest Rate Selection | 10 | |||
2.7 Letters of Credit | 12 | |||
3. SECURITY FOR THE LOAN; LOAN AND SECURITY DOCUMENTS | 21 | |||
3.1 Security | 21 | |||
3.2 Loan Documents and Security Documents | 23 | |||
3.3 Removal of Individual Property as a Borrowing Base Property — Borrower | 23 | |||
3.4 Removal of Individual Property as a Borrowing Base Property — Administrative Agent | 25 | |||
3.5 Additional Borrowing Base Property | 26 | |||
4. CONTINUING AUTHORITY OF AUTHORIZED REPRESENTATIVES | 27 | |||
5. CONDITIONS PRECEDENT | 27 | |||
5.1 Closing Loan and Funding Initial Loan Advance | 27 | |||
6. WARRANTIES AND REPRESENTATIONS | 30 | |||
6.1 Formation | 31 | |||
6.2 Proceedings; Enforceability | 31 | |||
6.3 Conflicts | 31 | |||
6.4 Ownership and Taxpayer Identification Numbers | 31 | |||
6.5 Litigation | 32 | |||
6.6 Information | 32 | |||
6.7 Taxes | 32 | |||
6.8 Financial Information | 32 | |||
6.9 Control Provisions | 32 | |||
6.10 Formation Documents | 33 | |||
6.11 Bankruptcy Filings | 33 | |||
6.12 Investment Company | 33 | |||
6.13 {RESERVED} | 33 |
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6.14 Borrowing Base Properties | 33 | |||
6.15 Use of Proceeds | 35 | |||
6.16 Insurance | 35 | |||
6.17 Deferred Compensation and ERISA | 35 | |||
6.18 Conditions Satisfied | 35 | |||
6.19 No Default | 35 | |||
6.20 Other Loan Parties’ Warranties and Representations | 35 | |||
6.21 Qualification as a REIT | 35 | |||
6.22 Regarding Representations and Warranties | 36 | |||
7. AFFIRMATIVE COVENANTS | 36 | |||
7.1 Notices | 36 | |||
7.2 Financial Statements; Reports; Officer’s Certificates | 36 | |||
7.3 Existence | 39 | |||
7.4 Payment of Taxes | 39 | |||
7.5 Insurance; Casualty, Taking | 39 | |||
7.6 Inspection | 40 | |||
7.7 Loan Documents | 40 | |||
7.8 Further Assurances | 40 | |||
7.9 Books and Records | 40 | |||
7.10 Business and Operations | 41 | |||
7.11 Title | 41 | |||
7.12 Estoppel | 41 | |||
7.13 ERISA | 42 | |||
7.14 Depository Account | 43 | |||
7.15 Costs and Expenses | 43 | |||
7.16 Appraisals | 43 | |||
7.17 Indemnification | 43 | |||
7.18 Leasing Matters | 44 | |||
7.19 Permanent Financings | 45 | |||
7.20 Leverage Ratio | 46 | |||
7.21 Fixed Charge Ratio | 46 | |||
7.22 Net Worth | 46 | |||
7.23 Borrowing Base Property Covenants | 46 | |||
7.24 Variable Rate Debt | 46 | |||
7.25 Replacement Documentation | 46 | |||
7.26 Other Covenants | 46 | |||
7.27 Maintenance of REIT Status | 47 | |||
7.28 Lenders’ Consultants | 47 | |||
7.29 USA PATRIOT Act Notice | 47 | |||
8. NEGATIVE COVENANTS | 48 | |||
8.1 No Changes to Borrower and other Loan Parties | 48 | |||
8.2 Restrictions on Liens | 48 | |||
8.3 Consolidations, Mergers, Sales of Assets, Issuance and Sale of Equity | 49 | |||
8.4 Restrictions on Debt | 50 | |||
8.5 Other Business | 51 |
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Page | ||||
8.6 Change of Control | 51 | |||
8.7 Forgiveness of Debt | 51 | |||
8.8 Affiliate Transactions | 51 | |||
8.9 ERISA | 51 | |||
8.10 Bankruptcy Filings | 51 | |||
8.11 Investment Company | 51 | |||
8.12 Use of Proceeds | 52 | |||
8.13 Distributions | 52 | |||
8.14 Restrictions on Investments | 52 | |||
8.15 Negative Pledges, etc | 52 | |||
9. SPECIAL PROVISIONS | 52 | |||
9.1 Legal Requirements | 52 | |||
9.2 Limited Recourse Provisions | 53 | |||
9.3 Payment of Obligations | 53 | |||
10. EVENTS OF DEFAULT | 54 | |||
10.1 Default and Events of Default | 54 | |||
10.2 Grace Periods and Notice | 56 | |||
11. REMEDIES | 57 | |||
11.1 Remedies | 57 | |||
11.2 Written Waivers | 58 | |||
11.3 Power of Attorney | 58 | |||
12. SECURITY INTEREST AND SET-OFF | 58 | |||
12.1 Security Interest | 58 | |||
12.2 Set-Off | 59 | |||
12.3 Right to Freeze | 59 | |||
12.4 Additional Rights | 59 | |||
13. THE ADMINISTRATIVE AGENT AND THE LENDERS | 60 | |||
13.1 Rights, Duties and Immunities of the Administrative Agent | 60 | |||
13.2 Respecting Loans and Payments | 64 | |||
13.3 Assignment by Lenders | 68 | |||
13.4 Administrative Matters | 71 | |||
13.5 Arranger | 72 | |||
14. CASUALTY AND TAKING | 72 | |||
14.1 Casualty or Taking; Obligation To Repair | 72 | |||
14.2 Adjustment of Claims | 73 | |||
14.3 Payment and Application of Insurance Proceeds and Condemnation Awards | 73 | |||
14.4 Conditions To Release of Insurance Proceeds | 74 | |||
15. GENERAL PROVISIONS | 75 | |||
15.1 Notices | 75 |
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Page | ||||
15.2 Limitations on Assignment | 77 | |||
15.3 Further Assurances | 78 | |||
15.4 Payments | 78 | |||
15.5 Parties Bound | 78 | |||
15.6 Governing Law; Consent to Jurisdiction; Mutual Waiver of Jury Trial | 78 | |||
15.7 Survival | 80 | |||
15.8 Cumulative Rights | 80 | |||
15.9 Claims Against Administrative Agent or Lenders | 80 | |||
15.10 Regarding Consents | 81 | |||
15.11 Obligations Absolute | 81 | |||
15.12 Table of Contents, Title and Headings | 82 | |||
15.13 Counterparts | 82 | |||
15.14 Satisfaction of Commitment Letter | 82 | |||
15.15 Time Of the Essence | 82 | |||
15.16 No Oral Change | 82 | |||
15.17 Monthly Statements | 82 | |||
15.18 No Advisory or Fiduciary Responsibility | 82 |
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Exhibit A | Definitions | EA-1 | ||
Exhibit B-1 | Requisition; Availability Certificate | EB-1 | ||
Exhibit C | Note | EC-1 | ||
Exhibit D | Authorized Representatives | ED-1 | ||
Exhibit E | Required Property, Hazard and Other Insurance | EE-1 | ||
Exhibit F | Ownership Interests and Taxpayer Identification Numbers | EF-1 | ||
Exhibit G | Compliance Certificate | EG-1 | ||
Exhibit H | Form of Assignment and Acceptance | EH-1 | ||
Exhibit I | Lenders’ Commitment | EI-1 | ||
Exhibit J | Borrowing Base Properties | EJ-1 | ||
Exhibit K | Loan Agenda | EK-1 | ||
Exhibit EC | Estoppel Certificate | EEC-1 | ||
Exhibit CC | Closing Compliance Certificate | ECC-1 |
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Schedule 6.14.4(i) | S-1 | |
Schedule 6.14.4(ii) | S-3 | |
Schedule 6.14.4(iii) | S-4 | |
Schedule 6.14.4(iv) | S-5 | |
Schedule 6.14.5 | S-6 | |
Schedule CF | SCF-1 |
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First: | To the Administrative Agent, towards any fees and any expenses for which the Administrative Agent is entitled to reimbursement under this Agreement or the other Loan Documents not theretofore paid to the Administrative Agent. | |||
Second: | To all applicable Lenders in accordance with their proportional share based upon their respective Commitment Percentages (or pro rata if the Lenders have not ratably funded such amounts) until all Lenders have been reimbursed for all fees and expenses which such Lenders have previously paid to the Administrative Agent and not theretofore paid to such Lenders. |
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Third: | To all applicable Lenders in accordance with their proportional share based upon their respective Commitment Percentages until all Lenders have been paid in full all principal and interest due to such Lenders under the Loan, with each Lender applying such proceeds for purposes of this Agreement first against the outstanding principal balance due to such Lender under the Loan and then to accrued and unpaid interest due under the Loan. | |||
Fourth: | To all applicable Lenders in accordance with their proportional share based upon their respective Commitment Percentages (or pro rata if the Lenders have not ratably funded such amounts) until all Lenders have been paid in full all other amounts due to such Lenders under the Loan including, without limitation, any costs and expenses incurred directly by such Lenders to the extent such costs and expenses are reimbursable to such Lenders by the Borrower under the Loan Documents. | |||
Fifth: | To the Borrower or such third parties as may be entitled to claim Liquidation Proceeds. |
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44 South Bayles Avenue
Port Washington, New York 11050
Attention: Leo S. Ullman
FAX Number: (516) 767-6497
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FAX Number: (516) 767-4562
44 South Bayles Avenue
Port Washington, New York 11050
Attention: Stuart H. Widowski, Esquire
FAX Number: (516) 767-6497
180 Maiden Lane
New York, NY 10038-4982
Attention: Karen Scanna, Esquire
Fax Number: (212) 806-6006
225 Franklin Street, 18th Floor
MA-01-22-0018
Boston, Massachusetts 02110
Attention: Jeffry M. Morrison
FAX Number: (617) 385-6293
Three Center Plaza
Boston, Massachusetts 02108
Attention: Kevin J. Lyons, Esquire
FAX Number: (617) 880-3456
213 Market Street
Harrisburg, Pennsylvania 17101
Attention: Peter J. Ostrowski, Vice President
FAX Number: 717-255-2390
15 Park Street
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Attention: David Yesue, Assistant Vice President
FAX Number: (508) 879-8237
1900 5th Ave. N., 15th Floor
Birmingham, AL 35203
Attention: Lori Chambers, Vice President
FAX Number: (205) 326-4075
1215 Superior Ave., 6th Floor
Cleveland, Ohio 44114
Attention: Kellie Anderson, Senior Vice President
FAX Number: (216) 277-4607
789 E. Lancaster Ave., Suite 240
Villanova, PA 19085
Attention: Joseph Rago
FAX Number: (610) 581-7110
710 Carillon Parkway
St. Petersburg, FL 33716
Attention: Steven F. Paley, Senior Vice President
FAX Number: (727) 567-8830
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BORROWER: | CEDAR SHOPPING CENTERS | |||||
PARTNERSHIP, L.P. | ||||||
By: | Cedar Shopping Centers, Inc., general partner | |||||
By: | /s/ Brenda J. Walker | |||||
Name: Brenda J. Walker | ||||||
Title: Vice President | ||||||
ADMINISTRATIVE AGENT: | KEYBANK, NATIONAL ASSOCIATION | |||||
By: | /s/ Jeffrey M. Morrison | |||||
Name: Jeffry M. Morrison | ||||||
Title: Senior Banker |
S-1
LENDER: | KEYBANK, NATIONAL ASSOCIATION, | |||||
a national banking association | ||||||
By: | /s/ Jeffrey M. Morrison | |||||
Name: Jeffry M. Morrison | ||||||
Title: Senior Banker |
S-2
LENDER: | RAYMOND JAMES BANK, FSB | |||||
By: | /s/ Steven F. Paley | |||||
Name: Steven F. Paley | ||||||
Title: Senior Vice President |
S-3
LENDER: | MANUFACTURERS AND TRADERS TRUST COMPANY | |||||
By: | /s/ Peter J. Ostrowski | |||||
Name: Peter J. Ostrowski | ||||||
Title: Vice President |
S-4
LENDER: | TD BANK, N.A. | |||||
By: | /s/ David Yesue | |||||
Name: David Yesue | ||||||
Title: Assistant Vice President |
S-5
LENDER: | REGIONS BANK | |||||
By: | /s/ Lori Chambers | |||||
Name: Lori Chambers | ||||||
Title: Vice President |
S-6
LENDER: | CITIZENS BANK OF PENNSYLVANIA | |||||
By: | /s/ Kellie Anderson | |||||
Name: Kellie Anderson | ||||||
Title: Senior Vice President |
S-7
LENDER: | TRISTATE CAPITAL BANK | |||||
By: | /s/ Joseph L. Rago | |||||
Name: Joseph L. Rago | ||||||
Title: Senior Vice President |
S-8
EA-1
Applicable Margin for LIBO Rate Loans | Applicable Margin for Variable Rate Loans | |
225 basis points | 75 basis points |
EA-2
(a) | The aggregate of the following for the Borrowing Base Properties: |
i. | For each Borrowing Base Property which is not an OD Property, the lesser of (A) seventy percent (70%) of the Borrowing Base Value of such Borrowing Base Property as of the date of the most recent Compliance Certificate or Borrowing Base Property report, as applicable, delivered to the Administrative Agent, or (b) seventy percent (70%) of the total costs as set forth on the Construction Budget for such Borrowing Base Property; plus | ||
ii. | For each Borrowing Base Property which is an OD Property, the aggregate of (A) seventy percent (70%) of the Borrowing Base Value of the completed component of such Borrowing Base Property as of the date of the most recent Compliance Certificate or Borrowing Base Property report, as applicable, delivered to the Administrative Agent, plus (B) the lesser of (I) seventy percent (70%) of the Borrowing Base Value of the development component of such Borrowing Base Property as of the date of the most recent Compliance Certificate or Borrowing Base Property report, as applicable, delivered to the Administrative Agent, or (II) seventy percent (70%) of the total costs as set forth on the Construction Budget for the development component of such Borrowing Base Property. |
(b) | the Implied Loan Amount. |
EA-3
EA-4
EA-5
EA-6
EA-7
EA-8
EA-9
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EA-11
EA-12
EA-13
EA-14
EA-15
EA-16
EA-17
EA-18
EA-19
EA-20
EA-21
EA-22
EA-23
EA-24
EA-25
EA-26
EA-27
TO: | KeyBank, National Association (“Administrative Agent”) |
RE: | Amended and Restated Loan Agreement dated as of October 21, 2008 (as amended, the “Loan Agreement”) between Administrative Agent, the lenders described therein and Cedar Shopping Centers Partnership, L.P. (“Borrower”) |
Variable Rate: | $ | |
Effective LIBO Rate: | $ | |
Interest Period | ||
$ | ||
Interest Period |
EB-1
Covenant | Requirement | Actual | ||
Leverage Ratio | Less than 70% | |||
Fixed Charge Ratio | Not less than 1.35:1 | |||
Borrower’s Net Worth | Not less than the aggregate of $536,025,018.00 plus 85% of cumulative net cash proceeds, as set forth in the Loan Agreement | |||
Aggregate Pro Rata amount of the Variable Rate Indebtedness of the Consolidated CSC Entities and the Unconsolidated CSC Entities | Less than 30% of the Total Asset Value | |||
Individual Property secured Debt of the Borrower, CSC or any Borrower Subsidiary which is recourse to the Borrower or CSC | In the aggregate outstanding at any time, not to exceed twenty five percent (25%) of the Total Asset Value |
EB-2
Covenant | Requirement | Actual | ||
The Pro Rata share of Investments in Development Assets (valued at undepreciated Book Value) | In the aggregate, not to exceed twenty five percent (25%) of Total Asset Value | |||
The Pro Rata share of Investments in Land Assets which are valued at Book Value | In the aggregate, not to exceed ten percent (10%) of Total Asset Value | |||
The Pro Rata share of Investments in Non-Retail Assets | In the aggregate, not to exceed five percent (5%) of Total Asset Value |
EB-3
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., a Delaware limited partnership | ||||||||
By: | Cedar Shopping Centers, Inc., its general partnership | |||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
EB-4
1. Maximum Loan Amount | ||||||||
a. Established Loan Amount | $ | 150,000,000.00 | ||||||
b. Total Commitment | $ | 150,000,000.00 | ||||||
c. Availability (calculated below) | $ | |||||||
least of (a), (b) and (c) | $ | |||||||
2. Loan Balance | ||||||||
a. Outstanding Balance of Loan plus | $ | |||||||
b. L/C Exposure | $ | |||||||
(a) plus (b) | $ | |||||||
3. Amount of Loan available to be advanced and/or L/C’s available to be issued | ||||||||
1 minus 2 | $ | |||||||
EB-5
1. For each Borrowing Base Property which is not an OD Property: | ||||||||
(A) seventy percent (70%) of the Borrowing Base Value* of such Borrowing Base Property as of the date of the most recent Compliance Certificate or Borrowing Base Property report, as applicable, delivered to the Administrative Agent, | $ | |||||||
(B) seventy percent (70%) of the total costs as set forth on the Construction Budget for such Borrowing Base Property; | $ | |||||||
(C) Aggregate of lesser of (A) or (B) above for each non OD property | $ | |||||||
2. For each Borrowing Base Property which is an OD Property: | ||||||||
(A) seventy percent (70%) of the Borrowing Base Value* of the completed component of such Borrowing Base Property as of the date of the most recent Compliance Certificate or Borrowing Base Property report, as applicable, delivered to the Administrative Agent, | $ | |||||||
(B) | ||||||||
(I) seventy percent (70%) of the Borrowing Base Value* of the development component of such Borrowing Base Property as of the date of the most recent Compliance Certificate or Borrowing Base Property report, as applicable, delivered to the Administrative Agent, | $ | |||||||
(II) seventy percent (70%) of the total costs as set forth on the Construction Budget for the development component of such Borrowing Base Property | $ | |||||||
(III) Aggregate of lesser of (I) and (II) above for each OD property | $ | |||||||
3. Implied Loan Amount | $ | |||||||
(calculated below) |
EB-6
4. Availability is the lesser of [(1)(C) + (2)(A) + 2(B)(III)] or (3) | $ | |||||||
EB-7
Borrowing Base Property | ||
Trexlertown Plaza | Received 8/20/08; $77,650,000.00 (as completed) | |
Lake Raystown Shopping Center | Received 8/20/08; $16,900,000.00 | |
Blue Mountain Commons | Received 8/20/08; $42,400,000.00 (as completed) | |
Carbondale Plaza | Received 8/20/08; $8,050,000.00 |
EB-8
EB-9
EC-1
EC-2
EC-3
EC-4
EC-5
EC-6
Witness: | BORROWER: | |||||||
CEDAR SHOPPING CENTERS PARTNERSHIP, | ||||||||
L.P.,a Delaware limited partnership | ||||||||
By: | Cedar Shopping Centers, Inc., its general partnership | |||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
EC-7
1. | Leo S. Ullman, President of Cedar Shopping Centers, Inc. | |
2. | Brenda J. Walker, Vice President of Cedar Shopping Centers, Inc. | |
3. | Lawrence E, Kreider, Jr., Chief Financial Officer of Cedar Shopping Centers, Inc. |
ED-1
EE-1
EE-2
225 Franklin Street
Boston, Massachusetts 02110
Attention: Central Insurance Unit
EE-3
Tax Identification | ||||
Entity Name | Partners/Members | Number | ||
Cedar-Trexler Plaza 2, LLC | Cedar Shopping Centers Partnership, L.P. | 20-5065081 | ||
Cedar Lake Raystown, LLC | Cedar Shopping Centers Partnership, L.P. | 20-1158059 | ||
Cedar-Clock Tower, LLC | Cedar Shopping Centers Partnership, L.P. | 20-5518103 | ||
Cedar Carbondale, LLC | Cedar Shopping Centers Partnership, L.P. | 20-0927694 |
EF-1
EG-1
CEDAR SHOPPING CENTERS PARTNERSHIP, | ||||||||
L.P.,a Delaware limited partnership | ||||||||
By: | Cedar Shopping Centers, Inc., its general | |||||||
partnership | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
EG-2
Covenant | Requirement | Actual | ||
Leverage Ratio | Less than 70% | |||
Fixed Charge Ratio | Not less than 1.35:1 | |||
Borrower’s Net Worth | Not less than the aggregate of $536,025,018.00 plus 85% of cumulative net cash proceeds, as set forth in the Loan Agreement | |||
Aggregate Pro Rata amount of the Variable Rate Indebtedness of the Consolidated CSC Entities and the Unconsolidated CSC Entities | Less than 30% of the Total Asset Value | |||
Individual Property secured Debt of the Borrower, CSC or any Borrower Subsidiary which is recourse to the Borrower or CSC | In the aggregate outstanding at any time, not to exceed twenty five percent (25%) of the Total Asset Value (excluding the Obligations) | |||
The Pro Rata share of Investments in Development Assets (valued at undepreciated Book Value) | In the aggregate, not to exceed twenty five percent (25%) of Total Asset Value | |||
The Pro Rata share of Investments in Land Assets which are valued at Book Value | In the aggregate, not to exceed ten percent (10%) of Total Asset Value | |||
The Pro Rata share of Investments in Non-Retail Assets | In the aggregate, not to exceed five percent (5%) of Total Asset Value |
EG-3
1. | Assignor[s]: | |||||
Assignee[s]: | ||||||
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] | ||||||
2. | Borrower: | Cedar Shopping Centers Partnership, L.P. |
EH-1
Aggregate | ||||||||||||
Amount of the | Percentage | |||||||||||
Commitment/ | Amount of | Assigned of | ||||||||||
Facility | Loans for all | Commitment/ | Commitment/ | CUSIP | ||||||||
Assignor[s] | Assignee[s] | Assigned | Lenders | Loans Assigned | Loans | Number | ||||||
ASSIGNOR: [NAME OF ASSIGNOR] | ||||
By: | ||||
ASSIGNEE: [NAME OF ASSIGNEE] | ||||
By: | ||||
EH-2
ASSIGNMENT AND ACCEPTANCE
EH-3
EH-4
Commitment | ||||||||
Lender | Commitment Amount | Percentage | ||||||
KEYBANK, NATIONAL ASSOCIATION | $ | 32,500,000.00 | 21.66667 | % | ||||
MANUFACTURERS AND TRADERS TRUST COMPANY | $ | 27,500,000.00 | 18.33334 | % | ||||
TD BANK, N.A. | $ | 25,000,000.00 | 16.66666 | % | ||||
REGIONS BANK | $ | 25,000,000.00 | 16.66666 | % | ||||
CITIZENS BANK OF PENNSYLVANIA | $ | 20,000,000.00 | 13.33333 | % | ||||
RAYMOND JAMES BANK, FSB | $ | 10,000,000.00 | 6.66667 | % | ||||
TRISTATE CAPITAL BANK | $ | 10,000,000.00 | 6.66667 | % | ||||
TOTAL | $ | 150,000,000.00 | 100 | % |
EI-1
Borrowing Base Property | ||
Trexlertown Plaza | Received 8/20/08;$77,650,000.00 (as completed) | |
Lake Raystown Shopping Center | Received 8/20/08; $16,900,000.00 | |
Blue Mountain Commons | Received 8/20/08; $42,400,000.00 ( as completed) | |
Carbondale Plaza | Received 8/20/08; $8,050,000.00 |
EJ-1
EEC-1
1. | The Landlord and Tenant represent that: |
2. | The Landlord represents that all rent presently due under the Lease has been paid in full, and no additional rent is presently due under the Lease; and as of the date of this Estoppel Certificate, there are no other payments due and payable from the Tenant to the Landlord under the Lease. | |
3. | The Landlord represents and warrants that the Landlord is the owner of the fee simple estate in the Premises and that its fee interest in the Premises is unencumbered, except as set forth inExhibit Cattached hereto. | |
4. | The Landlord acknowledges and agrees that the interest of the Landlord in and to the Premises and the Lease shall not be encumbered beyond that which such interests are encumbered as of the date hereof in any manner whatsoever without the prior written consent of the Agent. | |
5. | Upon the recording of the Security Instrument, the Landlord hereby: |
5.1 | recognizes Agent, and any successor, assignee or transferee of the Agent, as a “leasehold mortgagee"( as defined/described in the Lease), and acknowledges and consents to the granting of the Leasehold Mortgage, and acknowledges and recognizes that the Agent, as the mortgagee of the leasehold interest in the Lease, |
EEC-2
is entitled to the benefit of all of the rights and privileges provided to a leasehold mortgagee under the Lease; | |||
5.2 | recognizes the rights of the Agent, and any successor, assignee or transferee of the Agent, in and to the Premises as described in the Leasehold Mortgage, and consents to the exercise by the Agent of its rights under the Leasehold Mortgage upon the occurrence of an event of default by the Tenant under the Leasehold Mortgage; | ||
5.3 | recognizes the right of the Agent, and any successor, assignee or transferee of the Agent, to exercise any options, including, without limitation, any renewal or extension options or rights of first refusal provided to the Tenant under the Lease, and agrees that if, prior to the exercise by the Agent of its rights under the Leasehold Mortgage, the Tenant fails to exercise within the applicable time periods set forth in the Lease any option including, without limitation, any renewal or extension option or right of first refusal, the Landlord shall notify the Agent as attorney-in-fact for the Tenant and the Agent shall be authorized, at its option, to exercise any option or right within sixty (60) days of receipt of such notice and the Landlord shall recognize said exercise of any option or right by the Agent; | ||
5.4 | agrees that the interest of the Landlord in and to the Premises and the Lease shall not be transferred or assigned unless the transferee or assignee provides a written agreement to the Agent that (i) said transfer or assignment is subject to the terms and conditions of the Lease, and this Estoppel Certificate, and (ii) the transferee or assignee assumes the obligations of the Landlord thereunder and hereunder; | ||
5.5 | acknowledges that notwithstanding the occurrence of any event of default under the Lease, the Landlord will not terminate, or allow or suffer the termination of, the Lease, without the prior written consent of Agent; and | ||
5.6 | agrees that notwithstanding the terms of the Lease, any and all insurance proceeds or eminent domain or condemnation awards or proceeds with respect to the Premises shall be subject to the approval of the Agent and shall be payable to the Agent, or otherwise made available for the repair or restoration of the Premises, all in accordance with the terms and provisions of the Leasehold Mortgage. |
6. | Upon notice to the Landlord by the Agent of the exercise of Agent’s rights against Tenant (whether pursuant to the Leasehold Mortgage or otherwise) the Landlord shall: |
6.1 | not interfere with any enforcement by the Agent of the Agent’s rights in and to the personal property of the Tenant located on the Premises; | ||
6.2 | not distrain nor assert any claim against the personal property of Tenant; | ||
6.3 | permit the Agent to enter upon the Premises and remove the personal property from the Premises, provided, the Agent agrees that it shall promptly repair, at the |
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Agent’s expense, any physical damage to the Premises caused by said removal; and | |||
6.5 | not interfere with the disposal of the personal property by sale (by public auction or otherwise) conducted on the Premises. |
7. | Until such time as the Agent executes and records a discharge of the Leasehold Mortgage: |
7.1 | no modifications, extensions, renewals or surrender of the Lease shall be effective without the prior written consent of the Agent; | ||
7.2 | the Landlord shall not convey the Premises to the Tenant without the prior written consent of the Agent; | ||
7.3 | any and all rights, easements and development agreements to be granted by, or entered into with, the Landlord relative to the Premises shall not be granted or entered into without the prior written consent of the Agent; and | ||
7.4 | the Landlord shall waive any provisions of the Lease which provide that Tenant shall, upon request of the Landlord, subordinate the Lease to any lien of any present or future mortgages granted by the Landlord. |
8. | In the event of any default by the Tenant under the Lease, the Landlord shall: |
8.1 | cause a copy of any notice of default by the Tenant under the Lease or notice of termination of the Lease to be sent to the Agent, and the Landlord agrees that any such notice of default or termination shall not be deemed duly given and effective unless and until a copy of such notice is actually received by the Agent; and | ||
8.2 | permit the Agent to cure or cause to be cured such default within thirty (30) days of the receipt of notice from the Landlord of Tenant’s default if such default may be cured by the payment of money, or, otherwise, within sixty (60) days of the receipt of such notice. |
9. | If the Agent fails to cause any default of the Tenant under the Lease to be cured, or such default is incapable of being cured, during the applicable time period, the Landlord shall further refrain from exercising its rights and/or remedies under the Lease and shall not terminate the Lease if the Agent has provided the Landlord with written notice that either: |
9.1 | the Agent intends to cause the default to be cured and the Agent is diligently pursuing the cure of such default; or | ||
9.2 | the Agent has or intends to make demand upon Tenant for payment or performance under any agreement between Tenant and the Agent pertaining to the Loan Arrangement and the Agent diligently pursues the exercise of its rights thereunder. |
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11. | Any default of the Tenant under the Lease which is cured or which is caused to be cured by the Agent within the applicable cure period, shall be deemed to have been waived by the Landlord and the Landlord shall not be entitled to exercise any rights or remedies granted to Landlord under the Lease on account of the occurrence of such default. | |
12. | In the event any default of Tenant under the Lease is incapable of being cured, the Landlord shall, upon the request of the Agent, execute a new lease with the Agent upon the same terms and conditions (but providing for the revival of any rights and/or options which may have lapsed due to the Tenant’s action or inaction under the Lease) as the Lease and such new lease shall have the same relative priority in right, title and interest in and to the Premises as the Lease. | |
13. | The Agent shall not become liable for the obligations of the Tenant under the Lease unless and until the Agent obtains possession of the Premises and expressly agrees to assume all such obligations, and then, only for the period during which the Agent is in possession of the Premises. Upon the sale, transfer or assignment by the Agent of its interest in the Lease and/or the Premises, the Agent shall have no further liability to the Landlord. | |
14. | Whether or not the Agent assumes the obligations of Tenant pursuant to Section 13, above, the Agent shall have no liability to the Landlord for any obligations of Tenant under the Lease arising prior to such assumption by the Agent. | |
15. | All notices under this Estoppel Certificate shall be sent certified mail, return receipt requested as follows: | |
If to Landlord: |
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225 Franklin Street, 18th Floor
Boston, Massachusetts 02110
Attention: Gregory W. Lane
Three Center Plaza
Boston, Massachusetts 02108
Attn: Kevin J. Lyons, Esquire
16. | Upon the request of the Agent, the Landlord will provide the Agent with estoppel certificates, substantially similar in form and substance to this Estoppel Certificate, with respect to the status of the Lease and the compliance by the Landlord and/or Tenant with regard to specific terms, provisions and conditions set forth thereunder. | |
17. | Each party hereto agrees to execute such documents as may be reasonably required from time to time to evidence or effectuate the terms and provisions hereof. | |
18. | This Estoppel Certificate is binding on, and shall inure to the benefit of, the Tenant, the Agent, and the Landlord, and each of their successor and assigns. |
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LANDLORD: | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
TENANT: | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
AGENT: | ||||||
KEYBANK, NATIONAL ASSOCIATION | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
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Borrowing Base Property | Fee or Leasehold Estate Interest | |
Trexlertown Plaza | Fee Interest | |
Lake Raystown Shopping Center | Fee Interest | |
Blue Mountain Commons | Fee Interest | |
Carbondale Plaza | Fee Interest |
S-1
S-2
S-3
S-4
S-5
Affiliated with an | ||
Ground Lessor(s) | Affiliate of a Loan Party? | |
None |
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Projected Operating Budget
Funds From Operations (“FFO”) and Adjusted Funds From Operations (Cash Flow — “AFFO”)
Year Ending March 31, 2009
(unaudited)
Consolidated | ||||
totals | ||||
Revenues: | ||||
Rent | $ | 142,053,000 | ||
Expense recoveries | 33,163,000 | |||
Other | 559,000 | |||
Total revenues | 175,775,000 | |||
Expenses: | ||||
Operating, maintenance and management | 28,714,000 | |||
Real estate and other property-related taxes | 18,907,000 | |||
General and administrative | 8,766,000 | |||
Interest expense (including amortization of deferred financing costs) | 47,334,000 | |||
Depreciation and amortization | 46,772,000 | |||
Interest income and income from unconsolidated joint venture | (1,525,000 | ) | ||
Total expenses | 148,968,000 | |||
Income before minority and limited partners’ interests | 26,807,000 | |||
Minority interests | (2,159,000 | ) | ||
Limited partners’ interest | (666,000 | ) | ||
Net income | 23,982,000 | |||
Preferred stock distribution requirements | (7,877,000 | ) | ||
Net income applicable to common shareholders | 16,105,000 | |||
Add/deduct: | ||||
Real estate depreciation and amortization | 46,502,000 | |||
Limited partners’ interest | 666,000 | |||
Minority interests | 2,159,000 | |||
Minority interests’ share of FFO | (5,993,000 | ) | ||
Equity in income of unconsolidated joint venture | (891,000 | ) | ||
FFO from unconsolidated joint venture | 1,264,000 | |||
FFO | 59,812,000 | |||
Add/deduct: | ||||
Pro rata share of straight-line rents | (2,384,000 | ) |
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Consolidated | ||||
totals | ||||
Pro rata share of amortization of intangible lease liabilities | (13,166,000 | ) | ||
Pro rata share of cap-x @ $0.55/sq.ft/year (excluding development/redevelopment properties) | (5,431,000 | ) | ||
Pro rata share of scheduled debt amortization payments | (6,766,000 | ) | ||
Non-real estate depreciation and amortization | 1,882,000 | |||
AFFO (Cash Flow) | $ | 33,947,000 | ||
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