(Secured)
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TERM LOAN AGREEMENT
dated as of December 21, 2001
among
RD WOONSOCKET ASSOCIATES LIMITED PARTNERSHIP
and
RD BLOOMFIELD ASSOCIATES LIMITED PARTNERSHIP,
jointly and severally, as Borrower,
THE DIME SAVINGS BANK OF NEW YORK, FSB,
as Lender,
and
THE DIME SAVINGS BANK OF NEW YORK, FSB,
as Administrative Agent
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TERM LOAN AGREEMENT dated as of December 21, 2001 among RD
WOONSOCKET ASSOCIATES LIMITED PARTNERSHIP, a limited partnership organized and
existing under the laws of the State of Delaware ("Woonsocket") and RD
BLOOMFIELD ASSOCIATES LIMITED PARTNERSHIP, a limited partnership organized and
existing under the laws of the State of Delaware ("Bloomfield"), jointly and
severally (Woonsocket and Bloomfield, collectively, "Borrower"), THE DIME
SAVINGS BANK OF NEW YORK, FSB (in its individual capacity and not as
Administrative Agent, "The Dime"), the other lenders (if any) signatory hereto
and THE DIME SAVINGS BANK OF NEW YORK, FSB, as administrative agent for Lenders
(in such capacity, together with its successors in such capacity,
"Administrative Agent"; The Dime, the other lenders (if any) signatory hereto
and such other lenders who from time to time become Lenders pursuant to Section
3.07 or 11.05, each a "Lender" and collectively, "Lenders").
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:
ARTICLE I
DEFINITIONS AND CONSTRUCTION OF TERMS
Section 1.01 Definitions. As used in this Agreement the
following terms have the following meanings:
"Additional Costs" has the meaning specified in Section 3.01.
"Administrative Agent" has the meaning specified in the
preamble.
"Administrative Agent's Office" means 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.
"Affected Lender" has the meaning specified in Section 3.07.
"Affected Loan" has the meaning specified in Section 3.04.
"Affiliate" means, 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.
"Applicable Interest Rate" shall mean the "LIBOR Based Rate",
except as to all or any portions of the Principal Amount to which the LIBOR
Based Rate is not or cannot pursuant to the terms hereof be applicable, which
portions shall bear interest at the Prime Based Rate in accordance with Section
2.11 of this Agreement.
"Applicable Lending Office" means, for each Lender and for its
LIBOR Loan or Prime Based Loan, 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
which its LIBOR Loan or Prime Based Loan, as applicable, is to be made and
maintained.
"Assignee" has the meaning specified in Section 11.05.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement, substantially in the form of EXHIBIT C, pursuant to which
a Lender assigns and an Assignee assumes rights and obligations in accordance
with Section 11.05.
"Authorization Letter" means a letter agreement executed by
Borrower in the form of EXHIBIT A.
"Bloomfield Town Square Property" means the real property
owned by Borrower located in Bloomfield Hills, Michigan.
"Borrower" has the meaning specified in the preamble.
"Borrower's Accountants" means Ernst & Young, LLP, or such
other accounting firm(s) selected by Borrower and reasonably acceptable to
Administrative Agent.
"Business Day" means (1) any day on which commercial banks are
not authorized or required to close in New York City and (2) whenever such day
relates to a LIBOR Loan, an Interest Period with respect to a LIBOR Loan, or
notice with respect to a LIBOR Loan, a day on which dealings in Dollar deposits
are also carried out in the London interbank market and banks are open for
business in London.
"Code" means the Internal Revenue Code of 1986.
"Debt" means (1) indebtedness or liability for borrowed money,
or for the deferred purchase price of property or services (including trade
obligations), (2) obligations as lessee under Capital Leases, (3) current
liabilities in respect of unfunded vested benefits under any Plan, (4)
obligations in respect of letters of credit issued for the account of any
Person, (5) all obligations arising under bankers' or trade acceptance
facilities, (6) all guarantees, endorsements (other than for collection or
deposit in the ordinary course of business), and other contingent obligations to
purchase any of the items included in this definition, to provide funds for
payment, to supply funds to invest in any Person, or otherwise to assure a
creditor against loss, (7) all obligations secured by any Lien on property owned
by the Person whose Debt is being measured, whether or not the obligations have
been assumed and (8) all obligations under any agreement providing for
contingent participation or other hedging mechanisms with respect to interest
payable on any of the items described above in this definition.
2
"Default" means any event which with the giving of notice or
lapse of time, or both, would become an Event of Default.
"Default Rate" means a rate per annum equal to (1) with
respect to Prime Based Loans, a variable rate 4% above the rate of interest then
in effect thereon and (2) with respect to LIBOR Loans, a fixed rate 4% 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 4% above the rate of interest for a Prime Based Loan.
"Dollars" and the sign "$" mean lawful money of the United
States.
"Engineering Consultant" means Cashin Associates, P.C. or
other firm designated by Administrative Agent from time to time for any
Property.
"Environmental Discharge" means any discharge or release of
any Hazardous Materials in violation of any applicable Environmental Law.
"Environmental Law" means any applicable Law relating to
pollution or the environment, including Laws relating to noise or to emissions,
discharges, releases or threatened releases of Hazardous Materials into the work
place, the community or the environment, or otherwise relating to the
generation, manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials.
"Environmental Notice" means any written complaint, order,
citation or notice from any Person (1) affecting or relating to Borrower's
compliance with any Environmental Law in connection with any activity or
operations at any time conducted by Borrower, (2) relating to (a) the existence
of any Hazardous Materials contamination or Environmental Discharges or
threatened Hazardous Materials contamination or Environmental Discharges at any
of Borrower's locations or facilities or (b) remediation of any Environmental
Discharge or Hazardous Materials at any such location or facility or any part
thereof or (3) relating to any violation or alleged violation by Borrower of any
relevant Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, including the rules and regulations promulgated thereunder.
"ERISA Affiliate" means 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, or any trade or business which is under common control
(within the meaning of Section 414(c) of the Code) with Borrower, or any
organization which is required to be treated as a single employer with Borrower
under Section 414(m) or 414(o) of the Code.
"Event of Default" has the meaning specified in Section 8.01.
3
"Extended Maturity Date" means April 1, 2006.
"Federal Funds Rate" shall mean 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.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time, consistently applied.
"Good Faith Contest" means 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.
"Governmental Approvals" means any authorization, consent,
approval, license, permit, certification, or exemption of, registration or
filing with or report or notice to, any Governmental Authority.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Hazardous Materials" means any pollutant, effluents,
emissions, contaminants, toxic or hazardous wastes or substances, as any of
those terms are defined from time to time in or for the purposes of any relevant
Environmental Law, including asbestos fibers and friable asbestos,
polychlorinated biphenyls, and any petroleum or hydrocarbon-based products or
derivatives.
"Improvements" means, for each Property, all improvements now
or hereafter located on such Property.
"Indemnity" means, for each Property, an agreement from
Borrower and Principal of Borrower whereby, among other things, Lenders and
Administrative Agent are indemnified regarding Hazardous Materials.
"Interest Period" means, with respect to any LIBOR Loan, the
period commencing on the first Business Day of the month in which same is
advanced, and ending on the last day of such calendar month. In the event the
Note is dated other than the first day of a month, the first interest period
shall run from the date of the Note to the last day of the calendar month and
the LIBOR Rate shall be set as of the date of the Note. In the event additional
funds are advanced during an Interest Period such funds shall bear interest at
the rate in effect at the commencement of the Interest Period during which such
advance is made.
4
"Law" means any federal, state or local statute, law, rule,
regulation, ordinance, order, code, or rule of common law, now or hereafter in
effect, and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment.
"Lender" and "Lenders" have the respective meanings specified
in the preamble.
"Lender Reply Period" has the meaning specified in Section
11.02.
"LIBOR Based Rate" shall mean, the rate per annum (expressed
as a percentage) determined by Administrative Agent to be equal to the sum of
(a) the quotient of the LIBOR Rate for the Interest Period in question divided
by 1 minus the LIBOR Reserve Requirement (rounded up to the nearest 1/100 of 1%)
and (b) .0185.
"LIBOR Rate" shall mean the thirty (30) day rate (rounded up
to the nearest 1/16 of 1%) which appears on Page 3750 of the Telerate service
(or such other page of such service containing the rate information now found on
said Page 3750, or in the event Telerate ceases to provide such information, any
successor or other service providing such information) at approximately 11:00
a.m. (London time) on the first Business Day of the applicable Interest Period,
for deposits in immediately available funds, in lawful money of the United
States, of amounts comparable to the LIBOR Loan in question for the same period
of time as the Interest Period, all of the foregoing to be as determined by
Administrative Agent in its sole discretion.
"LIBOR Loan" means all or any portion (as the context
requires) of any Lender's Loan which shall accrue interest at the LIBOR Based
Rate.
"LIBOR Reserve Requirement" means, for any LIBOR Loan, the
average maximum rate at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained under Regulation D by member
banks of the Federal Reserve System in New York City with deposits exceeding one
billion U.S. Dollars against "Euro-Currency Liabilities", as such quoted term is
used in Regulation D. Without limiting the effect of the foregoing, the LIBOR
Reserve Requirement shall reflect any other reserves required to be maintained
by such member banks by reason of any Regulatory Change against (a) any category
of liabilities which includes deposits by reference to which the LIBOR Rate is
to be determined as provided in this Agreement or (b) any category of extensions
of credit or other assets which includes loans the interest rate on which is
determined on the basis of rates referred to in the definition of "LIBOR Rate"
set forth above.
"Lien" means any mortgage, deed of trust, pledge, security
interest, hypothecation, assignment for collateral purposes, deposit
arrangement, lien (statutory or other), or other security agreement or charge of
any kind or nature whatsoever of any third party (excluding any right of setoff
but including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Law of any jurisdiction to evidence any of
the foregoing).
5
"Loan" and "Loans" have the respective meanings specified in
Section 2.01.
"Loan Allocation" (i) $14,000,000 with respect to the
Bloomfield Town Square Property and (ii) $12,000,000 with respect to the Walnut
Hill Plaza Property.
"Loan Commitment" means, with respect to each Lender, the
obligation to make a Loan in the principal amount set forth below (subject to
change in accordance with the terms of this Agreement):
Loan
Lender Commitment
------ ----------
The Dime $26,000,000
"Loan Documents" means this Agreement, the Notes, the Mortgage
and related Uniform Commercial Code financing statements for each Property, the
Indemnity for each Property, the Authorization Letter and the Solvency
Certificate.
"Major Lease" means any lease demising 10% or more of gross
leasable area or more of the Improvements on any Property.
"Majority Lenders" means, at any time, those Lenders having
Pro Rata Shares aggregating greater than 50%; provided, however, that during the
existence of an Event of Default, the "Majority Lenders" shall be those Lenders
holding greater than 66 2/3 of the then aggregate unpaid principal amount of the
Loans.
"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
Administrative Agent, 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" means January 1, 2007.
"Mortgage" means, 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.
6
"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" means 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.
"Non-Excluded Taxes" has the meaning specified in Section
11.18.
"Note" and "Notes" have the respective meanings specified in
Section 2.07.
"Obligations" means 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.
"Parent" means, with respect to any Lender, any Person
controlling such Lender.
"Participant" and "Participation" have the respective meanings
specified in Section 11.05.
"Payor" and "Required Payment" have the respective meanings
specified in Section 9.12.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan" means 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.
7
"Premises Documents" means, for each Property, any REA for
such Property and the other "Premises Documents," as such term is defined in the
Mortgage for such Property.
"presence", when used in connection with any Environmental
Discharge or Hazardous Materials, means and includes presence, generation,
manufacture, installation, treatment, use, storage, handling, repair,
encapsulation, disposal, transportation, spill, discharge and release.
"Prime Based Rate" shall mean the greater of (a) the Federal
Funds Rate plus one-half of one percent (1/2%) or (b) the prime commercial
lending rate as announced from time to time by The Dime plus one half of one
percent (1/2%) per annum, each change in said rates to be effective as of the
date of such change.
"Prime Based Loan" means 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 Rate" means that rate of interest from time to time
announced by The Dime at its principal office in New York, New York as its prime
commercial lending rate, it being understood that said "prime commercial lending
rate" is a reference and does not necessarily represent the lowest or best rate
being charged to customers.
"Principal Amount" means the aggregate principal amount
advanced and outstanding under the Loan(s) from time to time.
"Principal of Borrower" means Acadia Realty Limited
Partnership.
"Property" means, respectively, each of Bloomfield Town Square
Property and Walnut Hill Plaza Property.
"Pro Rata Share" means, for purposes of this Agreement and
with respect to each Lender, a fraction, the numerator of which is the amount of
such Lender's Loan Commitment and the denominator of which is the Total Loan
Commitment.
"Prohibited Transaction" means any transaction proscribed by
Section 406 of ERISA or Section 4975 of the Code and to which no statutory or
administrative exemption applies.
"Regulation D" and "Regulation U" mean, respectively,
Regulation D and Regulation U of the Board of Governors of the Federal Reserve
System.
"Regulatory Change" means, with respect to any Lender, any
change after the date of this Agreement in federal, state, municipal 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
lenders including such Lender of or under any federal, state, municipal 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.
8
"Release Price" means (i) with respect to the Bloomfield Town
Square Property 105% of the Loan Allocation advanced and outstanding in respect
thereof and (ii) with respect to the Walnut Hill Plaza Property 105% of the Loan
Allocation advanced and outstanding in respect thereof. Upon a release, any
undisbursed portion of the Loan Allocation for the Property released shall no
longer be available.
"Relevant Documents" has the meanings specified in Section
10.02.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the thirty (30)
day notice period is waived under subsections .13, .14, .16, .18, .19 or .20 of
PBGC Reg. ss. 2615.
"Required Lenders" means, at any time, those 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 Lenders
holding at least 66-2/3% of the then aggregate unpaid principal amount of the
Loans.
"Solvency Certificate" means a certificate in the form of
EXHIBIT D.
"Solvent" means, 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.
"Substitute Lender" and "Substitution Notice" have the
respective meanings specified in Section 3.07.
"Term Sheet" means that certain Term Sheet, dated as of
September 12, 2001, between Administrative Agent and Borrower.
"The Dime" means The Dime Savings Bank of New York, FSB.
"this Agreement" means this Term Loan Agreement.
"Title Insurer" means, for each Property, the issuer(s) of the
title insurance policy(ies) insuring the Mortgage thereon.
"Total Loan Commitment" means an amount equal to the aggregate
amount of all Loan Commitments.
"United States" and "U.S." mean the United States of America.
"Walnut Hill Plaza Property" means the real property owned by
Borrower located in Woonsocket, Rhode Island.
9
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".
Section 1.04 Rules of Construction. Except as provided
otherwise, when used in this Agreement, (i) "or" is not exclusive, (ii) a
reference to a Law includes any amendment, modification or supplement to, or
replacement of, such Law, (iii) a reference to a Person includes its permitted
successors and permitted assigns, (iv) all terms defined in the singular shall
have a correlative meaning when used in the plural and vice versa, (v) a
reference to an agreement, instrument or document shall include such agreement,
instrument or document as the same may be amended, modified or supplemented from
time to time in accordance with its terms and as permitted by the Loan
Documents, (vi) all references to Articles, Sections or Exhibits shall be to
Articles, Sections and Exhibits of this Agreement unless otherwise indicated,
(vii) "hereunder", "herein", "hereof" and the like refer to this Agreement as a
whole and (viii) all Exhibits to this Agreement shall be incorporated herein.
Any table of contents and the headings and captions hereunder are for
convenience only and shall not affect the interpretation or construction hereof.
ARTICLE II
THE LOANS
Section 2.01 The Loans. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make, and Borrower agrees to
accept, a loan to Borrower (each such loan by a Lender, a "Loan"; such loans,
collectively, the "Loans") in an amount equal to such Lender's Loan Commitment.
The Loans shall be advanced in accordance with Section 2.04 upon Borrower's
satisfaction of the conditions set forth in Section 4.01. The LIBOR Loan or the
Prime Based Loan, as the case may be, 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 a 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 Loan specified
hereby to be made on such date.
Section 2.03 Purpose. Borrower shall use the proceeds of the
Loans only for working capital and repayment of existing debt. In no event shall
proceeds of the Loans be used, in whole or in part, for the purpose of
purchasing or carrying "margin stock", as such quoted term is defined in
Regulation U, or in connection with a hostile acquisition or for any illegal
purpose.
10
Section 2.04 Procedures for Advances. Borrower shall submit to
Administrative Agent a request for the advance of proceeds of the Loans (each,
an "Advance", and the initial Advance made on the date hereof, the "Initial
Advance") no later than 11:00 a.m. (New York time) on the date which is three
(3) 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 either by telephone or 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 an account of
Borrower designated by Borrower in its request for advance. Each Advance made
pursuant to this Agreement shall be in an amount at least equal to $5,000,000
and in integral multiples of $100,000. All Advances made pursuant to this
Agreement must be made on or prior to the date which is twelve (12) months from
the date hereof. The Initial Advance made pursuant to this Agreement shall be in
an amount at least equal to $16,000,000. Amounts advanced hereunder and repaid
shall not be readvanced.
Notwithstanding any other provisions hereof, the maximum
amount available to be advanced hereunder shall be limited to $25,400,000 until
such time as Administrative Agent has received reasonable evidence (the
"Remediation Evidence") that applicable "Governmental Authorities", as
hereinafter defined, are satisfied that the environmental conditions identified
in the Phase I Environmental Assessment dated October 12, 2001 prepared by EMG
have been remediated such that no further action is required. In the event the
Remediation Evidence is not received by the first anniversary of the date hereof
(i) $600,000 shall be advanced from the Loan on said date and shall be deposited
in an interest-bearing account with Administrative Agent to be held as
additional collateral for the Loan until receipt of the Remediation Evidence and
(ii) the full amount of the Loan shall be available to be drawn subject to the
satisfaction of the conditions of Section 4.01 hereof.
Section 2.05 Interest. Borrower shall pay interest to
Administrative Agent for the account of the applicable Lender on the outstanding
and unpaid principal amount of the Loans at the Applicable Interest Rate as
follows:
(i) On the date hereof, interest on the Principal Amount from
the date hereof to December 31, 2001;
11
(ii) Thereafter, commencing on January 1, 2002 and on the
first day of each calendar month thereafter to the Maturity Date,
interest on the Principal Amount at the Applicable Interest Rate;
(iii) On the Maturity Date the entire outstanding and unpaid
principal balance of the Loan, together with all accrued and unpaid
interest at the Applicable Interest Rate, shall become due and payable
in full;
(iv) In addition to interest on the Principal Amount at the
Applicable Interest Rate, as aforesaid, there shall be payable at the
time of each such interest payment commencing on February 1, 2002, an
amount, as calculated by Administrative Agent, sufficient to repay the
aggregate amount actually advanced hereunder through said date in 300
equal installments, said amount the Monthly Principal Payment. The
amount of the Monthly Principal Payment shall, based upon the
foregoing, be adjusted to reflect additional advances as and when made
hereunder and Administrative Agent shall notify Borrower of the new
Monthly Principal Payment amount in writing before the first day of the
next month following each additional advance.
The interest payable under this Agreement and the Notes shall
be computed by Administrative Agent on the basis of a three hundred sixty (360)
day year. Principal, interest, and all other sums payable under this Agreement
and under the Notes shall be paid in lawful money of the United States in
immediately available funds, free and clear of, and without deduction or offset
for, any present or future taxes, levies, imposts, charges, withholdings, or
liabilities with respect thereto, and free and clear of any and all other
defenses, offsets, claims, counterclaims, credits or deductions of any kind.
Nothing in this Agreement or in any other Loan Document shall
require the payment or permit the collection by Administrative Agent for the
account of Lenders of interest in an amount exceeding the maximum amount
permitted under applicable law in commercial mortgage loan transactions between
parties of the character of the parties hereto (the "Maximum Interest Amount").
Borrower shall not be obligated to pay to said holder any interest in excess of
the Maximum Interest Amount, and the amount of interest payable to said holder
under the Loan Documents shall under no circumstance be deemed to exceed the
Maximum Interest Amount. To the extent that any payment made to said holder
under the Loan Documents would cause the amount of interest charged to exceed
the Maximum Interest Amount, such payment shall be deemed a prepayment of
principal as to which no notice shall be required, notwithstanding anything to
the contrary in this Agreement, the Notes or in any other Loan Document, or, if
the amount of excess interest exceeds the unpaid principal balance of the Loans,
such excess shall be refunded to Borrower .
Accrued interest shall be due and payable in arrears upon and
with respect to any payment or prepayment of principal on the first Business Day
of each calendar month; provided, however, that interest accruing at the Default
Rate shall be due and payable on demand.
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Section 2.06 Notes. The Loan made by each Lender under this
Agreement shall be evidenced by, and repaid with interest in accordance with, a
single promissory note of Borrower in the form of EXHIBIT B, duly completed and
executed by Borrower, in a principal amount equal to such Lender's Loan
Commitment, payable to such Lender for the account of its Applicable Lending
Office (each such note, as the same may hereafter be amended, modified,
extended, severed, assigned, renewed or restated from time to time, including
any substitute notes pursuant to Section 3.07 or 11.05, a "Note"; all such
Notes, collectively, the "Notes"). The Notes shall mature, and all outstanding
principal and accrued interest and other sums thereunder shall be paid in full,
on the Maturity Date, as the same may be accelerated.
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 Prepayments. Borrower may prepay the Loans in
whole or in part as specified below. During the first eighteen (18) months of
the term of the Loans, Borrower may, upon ten (10) days' prior written notice,
prepay the Loans in whole or in part subject to the payment of a prepayment
charge equal to the greater of (i) 1% of the then-outstanding Principal Amount
or (ii) any applicable Breakage Fees (as defined in Section 3.05 of this
Agreement). From and after the nineteenth (19th) month through and including the
Maturity Date of the Loan, Borrower may, upon ten (10) days prior written
notice, prepay the Loan in whole or in part subject to the payment of a
prepayment charge equal to any applicable Breakage Fees (any fee due and payable
in connection with the prepayment of the Loans, hereinafter, a "Prepayment
Charge"). Any notices of prepayment by Borrower shall be irrevocable.
Section 2.08 Method of Payment. 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 in Dollars 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 and rate(s) of interest under the
Notes of all Lenders) of the payments of principal and interest in like funds
for the account of such Lender's Applicable Lending Office and (ii) fees payable
to such Lender in accordance with the terms hereof. Payments by Borrower
hereunder or under the Notes or other Loan Documents shall be made without
setoff or counterclaim.
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Except to the extent otherwise provided herein, whenever any
payment to be made hereunder 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 other fees, as the case may be.
Section 2.09 Application of Payments. All payments made under
this Agreement and under the Notes other than with respect to Breakage Fees (as
hereinafter defined) shall be applied as follows: first, to the payment of
interest on the principal balance outstanding hereunder from time to time;
second, to the payment of sums payable by Borrower to Administrative Agent for
the account of Lenders under any Loan Document other than on account of
principal and interest; and third, to the payment of principal.
Section 2.10 Applicable Interest Rate. Borrower shall, subject
to the terms and conditions hereinafter set forth, pay interest on the Principal
Amount at the LIBOR Based Rate. All or any portions of the Principal Amount to
which the LIBOR Based Rate is not or cannot pursuant to the terms hereof be
applicable shall bear interest at the Prime Based Rate.
Notwithstanding anything herein to the contrary, if, at the
time of or prior to the determination of the LIBOR Based Rate, the
Administrative Agent determines (which determination shall be conclusive) that
(i) by reason of circumstances affecting the London interbank market generally,
adequate and fair means do not or will not exist for determining the LIBOR Based
Rate applicable to an Interest Period or (ii) the LIBOR Rate, as determined by
Administrative Agent, will not accurately reflect the cost to Administrative
Agent of making or maintaining the Loan (or any portion thereof) at the LIBOR
Based Rate, then Administrative Agent shall give Borrower prompt notice thereof,
and the Principal Amount in question shall bear interest, or continue to bear
interest, as the case may be, at the Prime Based Rate. If at any time subsequent
to the giving of such notice, Administrative Agent determines that because of a
change in circumstances the LIBOR Based Rate is again available to Borrower
hereunder, Administrative Agent shall so advise Borrower and, within two (2)
Business Days, the rate of interest payable hereunder shall be converted from
the Prime Based Rate to the LIBOR Based Rate.
Section 2.11 Late Payment Premium. If all or a portion of any
monthly payment required to be made to Administrative Agent for the account of
Lenders (whether pursuant to this Agreement, the Notes or any other Loan
Document) is not received on or before the tenth day after the date such payment
is due (without reference to any grace period provided for in the Loan
Documents), a late charge of four percent (4%) of the amount so overdue ("Late
Charge") shall immediately be due to Administrative Agent for the account of
Lenders. Any such Late Charge shall be secured by the security for the Loan,
shall be paid no later than the due date of the next subsequent installment of
interest payable under this Agreement and the Notes and, if not so paid, shall
bear interest at the rate then in effect with respect to the Principal Amount as
set forth in this Agreement. In addition, if Borrower shall fail to make timely
payment in full of any sum payable under this Agreement, the Notes or any of the
Loan Documents, Borrower shall pay all costs of collection, including, but not
limited to, reasonable attorneys' fees and disbursements, whether or not suit is
filed hereon. Notwithstanding anything to the contrary in this paragraph, the
Late Charge shall not be applied to any portion of the Principal Amount due and
payable on the Maturity Date (or, if the Maturity Date is extended, the Extended
Maturity Date), which is overdue and not received.
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ARTICLE III
YIELD PROTECTION; ILLEGALITY; ETC.
Section 3.01 Additional Costs. Borrower shall pay directly to
each Lender from time to time on demand such amounts as such Lender may
determine to be necessary to compensate it for any increased costs which such
Lender determines are attributable to its making or maintaining a LIBOR Loan, or
its obligation to make or maintain a LIBOR Loan, or if a Prime Based Loan must
be converted into a LIBOR Loan in accordance with Section 2.11 of this
Agreement, or any reduction in any amount receivable by such Lender hereunder in
respect of its LIBOR Loan or such obligations (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"), in
each case resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable to
such Lender under this Agreement or the Notes in respect of any such
LIBOR Loan (other than changes in the rate of general corporate,
franchise, branch profit, net income or other income tax imposed on
such Lender or its Applicable Lending Office by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office); or
(2) (other than to the extent the LIBOR Reserve Requirement is
taken into account in determining the LIBOR Rate at the commencement of
the applicable Interest Period) imposes or modifies any reserve,
special deposit, deposit insurance or assessment, minimum capital,
capital ratio or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities
of, such Lender (including any LIBOR Loan), or any commitment of such
Lender (including such Lender's Loan Commitment hereunder); or
(3) imposes any other condition affecting this Agreement or
the Notes (or any of such extensions of credit or liabilities).
Without limiting the effect of the provisions of the first
paragraph of this Section, in the event that, by reason of any Regulatory
Change, any Lender either (i) incurs Additional Costs based on or measured by
the excess above a specified level of the amount of a category of deposits or
other liabilities of such Lender which includes deposits by reference to which
the LIBOR Rate is determined as provided herein or a category of extensions of
credit or other assets of such Lender which includes loans based on the LIBOR
Rate or (ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets which it may hold, then, if such Lender so elects by
notice to Borrower (with a copy to Administrative Agent), the obligation of such
Lender to maintain the Loan (or portions thereof) at the LIBOR Based Rate (and
Borrower's right to request same) shall be suspended (in which case the
provisions of Section 3.04 shall be applicable) until such Regulatory Change
ceases to be in effect.
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Determinations and allocations by a Lender for purposes of
this Section of the effect of any Regulatory Change pursuant to the first or
second paragraph of this Section, on its costs or rate of return of making or
maintaining its Loan or portions thereof or on amounts receivable by it in
respect of its Loan or portions thereof, and the amounts required to compensate
such Lender under this Section, shall be conclusive absent manifest error.
Notwithstanding any other provisions in the Note or this
Agreement to the contrary, if the Additional Costs to Borrower pursuant to this
Section 3.01 exceed 1% per annum, Borrower shall have the right to prepay this
Loan during the first eighteen (18) months from the date hereof without a
Prepayment Charge.
Section 3.02 Limitation on Types of Loans. Anything herein to
the contrary notwithstanding, if on or prior to the determination of the LIBOR
Rate for any Interest Period:
(1) Administrative Agent determines (which determination shall
be conclusive) that quotations of interest rates for the relevant
deposits referred to in the definition of "LIBOR Rate" in Section 1.01
are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for the LIBOR
Loans as provided herein; or
(2) a Lender determines (which determination shall be
conclusive) and promptly notifies Administrative Agent that the
relevant rates of interest referred to in the definition of "LIBOR
Interest Rate" in Section 1.01 upon the basis of which the rate of
interest for LIBOR Loans for such Interest Period is to be determined
do not adequately cover the cost to such Lender of making or
maintaining such LIBOR Loan for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof, and so long
as such condition remains in effect, Lenders (or, in the case of the
circumstances described in clause (2) above, the affected Lender) shall be under
no obligation to maintain the Loan at the LIBOR Based Rate and Borrower shall,
on the last day of the then current Interest Period for the affected outstanding
LIBOR Loans, either (x) prepay the affected LIBOR Loans or (y) convert the
affected LIBOR Loans into Prime Based Loans in accordance with Section 2.11.
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Section 3.03 Illegality. Notwithstanding any other provision
of this Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain a LIBOR
Loan hereunder, to convert a Prime Based Loan into a LIBOR Loan in accordance
with Section 2.11, then such Lender shall promptly notify Administrative Agent
and Borrower thereof and such Lender's obligation to make or maintain a LIBOR
Loan or to convert its Prime Based Loan into a LIBOR Loan shall be suspended (in
which case the provisions of Section 3.04 shall be applicable) until such time
as such Lender may again make and maintain a LIBOR Loan.
Section 3.04 Treatment of Affected Loans. If the obligations
of any Lender to make or maintain a LIBOR Loan or to convert a Prime Based Loan
into a LIBOR Loan, are suspended pursuant to Sections 3.01 or 3.03 (each LIBOR
Loan so affected being herein called an "Affected Loan"), such Lender's Affected
Loan shall be automatically converted into a Prime Based Loan on the last day of
the then current Interest Period for the Affected Loan.
To the extent that such Lender's Affected Loan has been so
Converted (or the interest rate thereon so converted), all payments and
prepayments of principal which would otherwise be applied to such Lender's
Affected Loan shall be applied instead to its Prime Based Loan. If subsequent to
such suspension and conversion to a Prime Based Loan the reasons for such
suspension have ceased to be in effect, Administrative Agent will so advise
Borrower and, within two (2) Business Days, the rate of interest payable under
this Agreement and the Notes with respect to the Principal Amount bearing
interest at the Prime Based Rate shall be converted to the LIBOR Based Rate.
Section 3.05 Certain Compensation. Borrower shall pay to
Administrative Agent, immediately upon request and notwithstanding contrary
provisions contained in the Mortgage or other Loan Documents, such amounts (the
"Breakage Fee") as shall, in the conclusive judgment of Administrative Agent,
compensate Administrative Agent for the account of Lenders 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 LIBOR Based Rate on a date other
than the last day of an applicable Interest Period or (ii) the conversion (for
any reason whatsoever, whether voluntary or involuntary) of the rate of interest
payable hereunder from the LIBOR Based Rate, on a date other than the last day
of an applicable Interest Period, which amounts shall include, without
limitation, an amount equal to the excess, if any, of (x) the amount of interest
that would have accrued at the LIBOR Based Rate on the amount so prepaid,
converted, not advanced or not borrowed, as the case may be, for the period from
the date of occurrence to the last day of the applicable Interest Period over
(y) the amount of interest (as determined in good faith by Administrative Agent)
that Administrative Agent for the account of Lenders would have paid to Borrower
(and other customers) on a deposit placed by Administrative Agent with leading
banks in the London interbank market for an amount comparable to the amount so
prepaid, converted, not advanced or not borrowed, as the case may be, for the
period from the date of occurrence to the last day of the applicable Interest
Period.
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Section 3.06 Capital Adequacy. If any Lender shall have
determined that, after the date hereof, the adoption of any applicable law, rule
or regulation regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Lender (or its Parent) as a consequence of
such Lender's obligations hereunder to a level below that which such Lender (or
its Parent) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from time to
time, within fifteen (15) days after demand by such Lender (with a copy to
Administrative Agent), Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender (or its Parent) for such reduction. A
certificate of any Lender claiming compensation under this Section, setting
forth in reasonable detail the basis therefor, shall be conclusive absent
manifest error.
Section 3.07 Substitution of Lenders. If any Lender (an
"Affected Lender") (i) makes demand upon Borrower for (or if Borrower is
otherwise required to pay) Additional Costs pursuant to Section 3.01 or (ii)
gives notice to Borrower that such Lender is unable to make or maintain a LIBOR
Loan as a result of a condition described in Section 3.03 or clause (2) of
Section 3.02, Borrower may, within ninety (90) days of receipt of such demand or
notice (or the occurrence of such other event causing Borrower to be required to
pay Additional Costs or causing Section 3.03 or clause (2) of Section 3.02 to be
applicable), as the case may be, give notice (a "Substitution Notice") to
Administrative Agent and to each Lender of Borrower's intention either (x) to
prepay in full the Affected Lender's Note and to terminate the Affected Lender's
entire Loan Commitment or (y) to replace the Affected Lender with another
financial institution (a "Substitute Lender") designated in such Substitution
Notice.
In the event Borrower opts to give the notice provided for in
clause (x) above, and if the Affected Lender shall not agree within thirty (30)
days of its receipt thereof to waive the payment of the Additional Costs in
question or the effect of the circumstances described in Section 3.03 or clause
(2) of Section 3.02, then, so long as no Default or Event of Default shall
exist, Borrower may terminate the Affected Lender's entire Loan Commitment,
provided that in connection therewith it pays to the Affected Lender all
outstanding principal and accrued and unpaid interest under the Affected
Lender's Note, together with all other amounts, if any, due from Borrower to the
Affected Lender, including all amounts properly demanded and unreimbursed under
this Article III.
In the event Borrower opts to give the notice provided for in
clause (y) above, and if (A) Administrative Agent shall, within thirty (30) days
of its receipt of the Substitution Notice, notify Borrower and each Lender in
writing that the proposed Substitute Lender is reasonably satisfactory to
Administrative Agent and (B) the Affected Lender shall not, prior to the end of
such thirty (30)-day period, agree to waive the payment of the Additional Costs
in question or the effect of the circumstances described in Section 3.03 or
clause (2) of Section 3.02, then the Affected Lender shall, so long as no
Default or Event of Default shall exist, assign its Note and all of its rights
and obligations under this Agreement to the Substitute Lender, and the
Substitute Lender shall assume all of the Affected Lender's rights and
obligations, pursuant to an agreement, substantially in the form of an
Assignment and Assumption Agreement, executed by the Affected Lender and the
Substitute Lender. In connection with such assignment and assumption, the
Substitute Lender shall pay to the Affected Lender an amount equal to the
outstanding principal amount under the Affected Lender's Note plus all interest
accrued thereon, plus all other amounts, if any (other than the Additional Costs
in question), then due and payable to the Affected Lender; provided, however,
that prior to or simultaneously with any such assignment and assumption,
Borrower shall have paid to such Affected Lender all amounts properly demanded
and unreimbursed under this Article III. Upon the effective date of such
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assignment and assumption and the payment by the Substitute Lender to
Administrative Agent of a fee, for Administrative Agent's own account, in the
amount of $3,500, the Substitute Lender shall become 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 Affected Lender shall be released
from its obligations hereunder, and no further consent or action by any party
shall be required. Upon the consummation of any assignment pursuant to this
Section, a substitute Note shall be issued to the Substitute Lender by Borrower,
in exchange for the return of the Affected Lender's Note. The obligations
evidenced by such substitute note shall constitute "Obligations" for all
purposes of this Agreement and the other Loan Documents and shall be secured by
the Mortgages. 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
Substitute Lender 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 9.13. Each Substitute Lender
shall be deemed to have made the representations contained in, and shall be
bound by the provisions of, Section 9.13.
Borrower, Administrative Agent and Lenders shall execute such
modifications to the Loan Documents as shall be reasonably required in
connection with and to effectuate the foregoing.
Section 3.08 "Lender" to Include Participants. For purposes of
Sections 3.01 through 3.06 and of the definition of "Additional Costs", the term
"Lender" shall, at each Lender's option, be deemed to include such Lender's
present and future Participants in its 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. The obligations of Lenders
hereunder and the obligation of each Lender to advance the proceeds of the Loans
are subject to the condition precedent that Administrative Agent shall have
received and approved on or before the date hereof each of the following
documents (it being understood that the documents set forth in paragraphs (3)
through (15) below are required for each Property), and each of the following
requirements shall have been fulfilled:
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(1) Fees and Expenses. The payment of (i) all fees and
expenses incurred by The Dime, as Lender and Administrative Agent
(including, without limitation, the reasonable fees and expenses of
legal counsel, the Engineering Consultant and any valuation,
environmental or insurance consultants); and (ii) a commitment fee of
$130,000 and a fee of .15% of the excess of $26,000,000 over the amount
of the Initial Advance;
(2) Notes. The Notes for The Dime and each of the other
Lenders (if any) signatory hereto, each duly executed by Borrower;
(3) Mortgage and UCCs. The Mortgage, duly executed by Borrower
and recorded in the appropriate land records, together with duly
executed financing statements filed under the Uniform Commercial Code
of all jurisdictions necessary or, in the reasonable opinion of
Administrative Agent, desirable to perfect the lien created by each
Mortgage;
(4) Indemnity. The Indemnity, duly executed by Borrower and
Principal of Borrower;
(5) Title Policy. A paid title insurance policy in the amount
of the Mortgage, in form approved by Administrative Agent and issued by
the Title Insurer, which shall insure the Mortgage to be a valid first
lien on Borrower's interests in the Property and Improvements, free and
clear of all liens, defects, encumbrances and exceptions other than
those previously approved by Administrative Agent, and shall contain
(i) a reference to the survey but no survey exceptions, (ii) if such
policy is dated earlier than the date of the advance of the proceeds of
the Loans, an endorsement to such policy, in a form approved by
Administrative Agent, setting forth no additional exceptions other than
those approved by Administrative Agent and (iv) such affirmative
insurance and endorsements as Administrative Agent may require; and
shall be accompanied by such reinsurance agreements between the Title
Insurer and title companies approved by Administrative Agent, in ALTA
facultative form approved by Administrative Agent and with direct
access provisions, as Administrative Agent may require;
(6) Survey. A current ALTA/ACSM survey, certified to
Administrative Agent 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 lines and street lines;
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(7) Appraisal. An independent M.A.I. appraisal, commissioned
by Administrative Agent, of the value of the Property, which appraisal
shall comply in all respects with the standards for real estate
appraisals established pursuant to the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989;
(8) Insurance Policies. The policies and certificates of
hazard and other insurance required by the Mortgage, together with
evidence of the payment of the premiums therefor;
(9) Hazardous Materials Report/Certification. A detailed
report and certification by a properly qualified engineer with regard
to Hazardous Materials affecting the Property, which shall include,
inter alia, a certification that such engineer has examined a list of
prior owners, tenants and other users of the Property, and has made an
on-site physical examination of the Property and Improvements, and a
visual observation of the surrounding areas, and disclosing the extent
of past or present Hazardous Materials activities or of the presence of
Hazardous Materials;
(10) Consultant's Report. A detailed report from the
Engineering Consultant to the effect that (i) the Improvements are in
satisfactory condition and have been constructed in accordance with the
plans and specifications therefor approved by all applicable
Governmental Authorities, (ii) the Improvements comply with all
applicable zoning and other Laws, all Major Leases and the Premises
Documents, (iii) all roads and utilities necessary for the full
utilization of the Improvements for their intended purposes have been
completed and (iv) there exists a sufficient number of parking spaces
necessary to satisfy the requirements of the Premises Documents and any
leases and all zoning and other applicable Laws with respect to the
Property, and all required landscaping, sidewalks and other amenities,
and all off-site improvements, related to the Improvements have been
completed;
(11) Permits and Other Approvals. Copies of any and all
authorizations, including plot plan and subdivision approvals, zoning
variances, sewer, building and other permits, required by all
Governmental Authorities for the use, occupancy and operation of the
Property and/or Improvements in accordance with all applicable
building, environmental, ecological, landmark, subdivision and zoning
Laws;
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(12) Leases. Copies, certified to be true and complete, of all
executed leases of the Improvements, accompanied by notices of
assignments in the form of EXHIBIT J and, in the case of Major Leases
(i) estoppel certificates from the tenants thereunder, (ii) at
Administrative Agent's option, subordination non-disturbance and
attornment agreements to be provided to Administrative Agent within
forty-five (45) days of the date hereof and if not received within such
forty-five (45) day period, then no further advances of the loan will
be made until such subordination non-disturbance and attornment
agreements are received by Administrative Agent and (iii) certified
copy of the standard form of lease Borrower is using in connection with
the leasing of space in the Improvements, if any, and of the rent roll
for each Property;
(13) Premises Documents. A copy, certified to be true and
complete, of the Premises Documents, together with estoppel
certificates with respect thereto from each of the parties thereto and,
if available, current financial statements of such parties;
(14) 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;
(15) UCC Searches. Uniform Commercial Code searches with
respect to Borrower and advice from the Title Insurer to the effect
that searches of the proper public records disclose no leases of
personalty or financing statements filed or recorded against Borrower
or the Mortgaged Property;
(16) Financials of Borrower. Unaudited operating statements
and aged accounts receivable reports for each Property, certified by
the chief financial officer of Borrower's general partner;
(17) Organizational Documents. If Borrower or any general
partner or member of Borrower 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,
(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 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,
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and, if Borrower or any general partner or member of Borrower 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 jurisdiction of its formation, 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 and 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;
(18) Solvency Certificate. A duly executed Solvency
Certificate;
(19) Opinion of Counsel for Borrower. A favorable opinion,
dated the date hereof, of counsel for Borrower, as to such matters as
Administrative Agent may reasonably request;
(20) Authorization Letter. The Authorization Letter, duly
executed by Borrower;
(21) Request for Advance. A request for an advance in
accordance with Section 2.04;
(22) Certificate. The following statements shall be true and
Administrative Agent shall have received a certificate dated the date
hereof signed by a duly authorized signatory of Borrower stating, to
the best of the certifying party's knowledge, the following:
(i) All representations and warranties contained in this
Agreement and in each of the other Loan Documents are true and
correct on and as of the date hereof as though made on and as
of such date,
(ii) No Default or Event of Default has occurred and is
continuing, or could result from the transactions contemplated
by this Agreement and the other Loan Documents, and
(iii) None of the Improvements on any Property has been
materially injured or damaged by fire or other casualty;
(23) Covenant Compliance. A covenant compliance certificate of
the sort required by paragraph (3) of Section 6.09; and
23
(24) Additional Materials. Such other approvals, documents,
instruments or opinions as Administrative Agent may reasonably request.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and
each Lender as follows:
Section 5.01 Due Organization. Borrower (and if Borrower is a
partnership or limited liability company, its general partners or members, as
the case may be) is duly organized, validly existing and in good standing under
the Laws of the jurisdiction of its organization, has the power and authority to
own its assets and to transact the business in which it is now engaged, and, if
applicable, is duly qualified for the conduct of business and in good standing
under the Laws of each jurisdiction where a Property is located and each other
jurisdiction in which such qualification is required.
Section 5.02 Power and Authority; No Conflicts; Compliance
With Laws. The execution, delivery and performance of the obligations required
to be performed by Borrower under the Loan Documents does not and will not (i)
require the consent or approval of its shareholders, partners or members, as the
case may be, or such consent or approval has been obtained, (ii) contravene its
certificate of incorporation, by-laws, partnership agreement or other
organizational documents, (iii) violate any provision of, or require any filing,
registration, consent or approval under, any Law (including, without limitation,
Regulation U), order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to it, (iv) result in a breach of or
constitute a default under or require any consent under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which it may be
a party or by which it or its properties may be bound or affected except for
consents which have been obtained, (v) result in, or require, the creation or
imposition of any Lien, upon or with respect to any of its properties now owned
or hereafter acquired or (vi) cause it to be in default under any such Law,
order, writ, judgment, injunction, decree, determination or award or any such
indenture, agreement, lease or instrument; Borrower is in compliance with all
Laws applicable to it and its properties.
Section 5.03 Legally Enforceable Agreements. Each Loan
Document is a legal, valid and binding obligation of Borrower, enforceable
against Borrower 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 5.04 Litigation. There are no actions, suits or
proceedings pending or, to its knowledge, threatened against Borrower or any of
its Affiliates, any Property, the Improvements thereon, the validity or
enforceability of any Mortgage or the priority of the Lien thereof, at law or in
equity, before any court or arbitrator or any Governmental Authority except
actions, suits or proceedings which have been disclosed to Administrative Agent
in writing and which are fully covered by insurance or would, if adversely
determined, not substantially impair the ability of Borrower to pay when due any
amounts which may become payable under the Notes or other Loan Documents or to
otherwise pay and perform its obligations in connection with the Loans.
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Section 5.05 Good Title to Properties. Borrower has good,
marketable and legal title to all of the properties and assets each of them
purports to own (including, without limitation, those reflected in the December
31, 2000 financial statements referred to in Section 5.13), only with exceptions
which do not materially detract from the value of such property or assets or the
use thereof in Borrower's business. Borrower enjoys peaceful and undisturbed
possession of all leased property necessary in any material respect in the
conduct of its businesses. All such leases are valid and subsisting and are in
full force and effect.
Section 5.06 Taxes. 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 without the
imposition of a penalty, including interest and penalties, except to the extent
they are the subject of a Good Faith Contest.
Section 5.07 ERISA. Borrower is in compliance in all material
respects with all applicable provisions of ERISA. Neither a Reportable Event nor
a Prohibited Transaction has occurred with respect to any Plan which could
result in liability of Borrower; no notice of intent to terminate a Plan has
been filed nor has any Plan been terminated within the past five (5) years; no
circumstance exists which constitutes grounds under Section 4042 of ERISA
entitling the PBGC to institute proceedings to terminate, or appoint a trustee
to administer, a Plan, nor has the PBGC instituted any such proceedings;
Borrower and the ERISA Affiliates have not completely or partially withdrawn
under Sections 4201 or 4204 of ERISA from a Multiemployer Plan; Borrower and the
ERISA Affiliates have met the minimum funding requirements of Section 412 of the
Code and Section 302 of ERISA of each with respect to the Plans of each and
there is no material "Unfunded Current Liability" (as such quoted term is
defined in ERISA) with respect to any Plan established or maintained by each;
and Borrower and the ERISA Affiliates have not incurred any liability to the
PBGC under ERISA (other than for the payment of premiums under Section 4007 of
ERISA). No part of the funds to be used by Borrower in satisfaction of its
obligations under this Agreement 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 U.S. Department of Labor in rules, regulations, releases, bulletins or
as interpreted under applicable case law. Neither the extension of credit
evidenced by the Notes nor any other transaction contemplated under the Loan
Documents constitutes a Prohibited Transaction.
Section 5.08 No Default on Outstanding Judgments or Orders.
Borrower has satisfied all judgments which are not being appealed or which are
not fully covered by insurance, and are not in default with respect to any
judgment, order, writ, injunction, decree, rule or regulation of any court,
arbitrator or federal, state, municipal or other Governmental Authority,
commission, board, bureau, agency or instrumentality, domestic or foreign.
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Section 5.09 No Defaults on Other Agreements. Except as
disclosed to Administrative Agent in writing, Borrower is not a party to any
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any partnership, trust or other restriction which is
likely to result in a Material Adverse Change. Borrower is not in default in any
respect in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement or instrument which is likely
to result in a Material Adverse Change.
Section 5.10 Government Regulation. Borrower is not subject to
regulation under the Investment Company Act of 1940 or any statute or regulation
limiting its ability to incur indebtedness for money borrowed as contemplated
hereby.
Section 5.11 Environmental Protection. To the best of
Borrower's knowledge, none of Borrower's properties contains any Hazardous
Materials that, under any Environmental Law currently in effect, (i) would
impose liability on Borrower that is likely to result in a Material Adverse
Change or (ii) is likely to result in the imposition of a Lien on any assets of
Borrower in each case if not properly handled in accordance with applicable Law.
To the best of Borrower's knowledge, neither it nor any portion of any Property
or the Improvements thereon is in violation of, or subject to any existing,
pending or threatened investigation or proceeding by any Governmental Authority
under, any Environmental Law. Borrower is not aware of any matter, claim,
condition or circumstance which would reasonably cause a Person to make further
inquiry with respect to such matters in order to ascertain whether any Hazardous
Materials or their effects have been disposed of or released on or to any
portion of any Property, the Improvements thereon or any surrounding areas;
Borrower is not required by any Environmental Law to obtain any permits or
license to construct or use any improvements, fixtures, or equipment with
respect to any Property, or if such permit or license is required it has been
obtained; and, to the best of Borrower's knowledge, the prior use of each
Property has not resulted in the disposal or release of any Hazardous Materials
on or to any portion of the Property or any surrounding areas in violation of
applicable Law.
Section 5.12 Solvency. Borrower is, and upon consummation of
the transactions contemplated by this Agreement, the other Loan Documents and
any other documents, instruments or agreements relating thereto, will be,
Solvent.
Section 5.13 Financial Statements. Borrower's financial
statements most recently delivered to Lenders pursuant to the terms of this
Agreement are in all material respects complete and correct and fairly present
the financial condition of the subjects thereof as of the dates of and for the
periods covered by such statements, all in accordance with GAAP. There has been
no Material Adverse Change since the date of such most recently delivered
Borrower's financial statements, and no borrowings which might give rise to a
Lien or claim against all or any portion of the Mortgaged Property under any
Mortgage or against the proceeds of the Loans have been made by Borrower or
others since the dates of such most recently delivered Borrower's financial
statements.
Section 5.14 Insurance. Borrower has in force paid insurance
as required by the Mortgages and, generally, Borrower has in force paid
insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same type of business and similarly situated.
26
Section 5.15 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 to Administrative Agent or any 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 (other than projections
which are made by Borrower in good faith), 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 or, so far as Borrower can now foresee, will materially affect
adversely any of the Mortgaged Property under the Mortgages or the business,
prospects, profits or financial condition of Borrower or the ability of Borrower
to perform this Agreement and the other Loan Documents.
Section 5.16 Separate Tax and Zoning Lot. Each Property
constitutes a distinct parcel for purposes of zoning and of taxes, assessments
and impositions (public or private) and is not otherwise considered as part of a
larger single lot for purposes of zoning or of taxes, assessments or impositions
(public or private).
Section 5.17 Zoning and other Laws; Covenants and
Restrictions. As to each Property, (i) the Improvements and the uses thereof
comply with applicable zoning, environmental, ecological, landmark and other
applicable Laws, and all requirements for such uses have been satisfied and (ii)
Borrower and the Property are in compliance with all applicable restrictions and
covenants.
Section 5.18 Utilities Available. As to each Property, all
utility services necessary for the 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 5.19 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 all or part of the Mortgaged Property prior
to any Mortgage.
Section 5.20 Roads. As to each Property, 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 5.21 Premises Documents and Leases. As to each
Property, the Premises Documents and all leases are unmodified and in full force
and effect, there are no defaults 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.
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ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid or the Loan
Commitments remain in effect, or any other amount is owing by Borrower to
Administrative Agent or any Lender under any Loan Document or otherwise in
respect of the Loans, Borrower shall:
Section 6.01 Maintenance of Existence. Preserve and maintain
its legal existence and good standing in the jurisdictions of its organization
and (in the case of Borrower only) where each Property is located, and qualify
and remain qualified as a foreign entity in each other jurisdiction in which
such qualification is required.
Section 6.02 Maintenance of Records. Keep adequate records and
books of account, in which complete entries will be made reflecting all of its
financial transactions, in accordance with GAAP.
Section 6.03 Maintenance of Insurance. At all times, maintain
and keep in force (i) (in the case of Borrower only) the insurance required by
each of the Mortgages and (ii) insurance with financially sound and reputable
insurance companies or associations in such amounts and covering such risks as
are usually carried by companies engaged in the same type of business and
similarly situated, which insurance shall be acceptable to Administrative Agent
and may provide for reasonable deductibility from coverage thereof.
Section 6.04 Compliance with Laws; Payment of Taxes. Comply in
all respects with all Laws applicable to it or to any of its properties or any
part thereof, such compliance to include, without limitation, paying before the
same become delinquent all taxes, assessments and governmental charges imposed
upon it or upon its property, except to the extent they are the subject of a
Good Faith Contest.
Section 6.05 Right of Inspection. At any reasonable time and
from time to time upon reasonable notice, permit Administrative Agent or any
Lender or any agent or representative thereof to examine and make copies and
abstracts from its records and books of account and visit and inspect its
properties and to discuss its affairs, finances and accounts with the
independent accountants of Borrower; and cooperate with the Engineering
Consultant to enable it to perform its functions hereunder.
Section 6.06 Compliance With Environmental Laws. Comply in all
material respects with all applicable Environmental Laws and timely pay or cause
to be paid all costs and expenses incurred in connection with such compliance,
except to the extent the same are the subject of a Good Faith Contest; and (in
the case of Borrower only) at its sole cost and expense, promptly remove, or
cause the removal of, any and all Hazardous Materials or the effects thereof at
any time identified as being on, in, under or affecting any Property or the
Improvements thereon in violation of applicable Environmental Law.
28
Section 6.07 Maintenance of Properties. Do all things
reasonably necessary to maintain, preserve, protect and keep its properties in
good repair, working order and condition.
Section 6.08 Payment of Costs. Pay all costs and expenses
required for the satisfaction of the conditions of this Agreement, 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 and (ii) any taxes, assessments, impositions
(public or private), insurance premiums, Liens, security interests or other
claims or charges against any Property.
Section 6.09 Reporting and Miscellaneous Document
Requirements. Furnish directly to each Lender:
(1) Annual Financial Statements. As soon as available and in
any event within one hundred (100) days after the end of each Fiscal
Year, financial statements of General Partner of Borrower as of the end
of and for such Fiscal Year, in reasonable detail and stating in
comparative form the respective figures for the corresponding date and
period in the prior Fiscal Year, audited by its Accountants;
(2) 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;
(3) 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 material 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;
(4) 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;
(5) Offices. Thirty (30) days' prior written notice of any
change in the chief executive office or principal place of business of
Borrower;
(6) 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;
29
(7) Insurance Coverage. Promptly, such information concerning
Borrower's insurance coverage as Administrative Agent may reasonably
request;
(8) 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;
(9) Leasing Reports and Property Information. As soon as
available and in any event within ninety (90) days after the end of
each Fiscal Year, a rent roll, leasing report, tenant sales report and
operating and cash statements for each Property; and
(10) General Information. Promptly, such other information
respecting the condition or operations, financial or otherwise, of
Borrower or any properties of Borrower as Administrative Agent may from
time to time reasonably request.
Section 6.10 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 6.11 Premises Documents; Leases. As to each Property,
deliver to Administrative Agent, promptly following the execution thereof,
certified copies of (i) all amendments or supplements to any Premises Documents
or any lease and (ii) all leases, together with (to the extent available)
current financial statements of the tenants thereunder (and of any guarantors of
such tenants' obligations), and, in the case of Major Leases, notices of
assignment in the form of EXHIBIT J; keep all Premises Documents and leases in
full force and effect and at all times do all things necessary to compel
performance by the parties to the Premises Documents or the tenants under such
leases, as the case may be, of all obligations, covenants and agreements by such
parties or tenants, as the case may be, to be performed thereunder; and not
enter into or modify (other than de minimis modifications) any Premises
Documents or Major Lease without the prior written consent of Administrative
Agent.
Section 6.12 Compliance with Covenants, Restrictions and
Easements. Comply with all restrictions, covenants and easements affecting each
Property or the Improvements thereon and cause the satisfaction of all
conditions of this Agreement.
Section 6.13 Maintenance, Management, Service and Leasing
Contracts. Deliver to Administrative Agent, as and when executed, certified
copies of all management and leasing contracts entered into with respect to any
Property, each of which shall be entered into with a party, and on terms and
conditions, reasonably acceptable to Administrative Agent; and contemporaneously
with entering into each such contract, at Administrative Agent's option, cause
each of the foregoing to be collaterally assigned to Administrative Agent for
the benefit of Lenders as additional security for the Loans and/or cause the
service provider under each such contract to undertake, inter alia, to continue
performance on Lenders' behalf without additional cost in the event of a
Default; and keep in full force and effect and not materially modify the
management and leasing agreement(s) approved pursuant to paragraph (14) of
Section 4.01 without Administrative Agent's prior written consent.
30
Section 6.14 Remedial Work. Perform the Remedial Work to the
satisfaction of the Engineering Consultant within two hundred seventy (270) days
from the date hereof.
ARTICLE VII
NEGATIVE COVENANTS
So long as any of the Notes shall remain unpaid, or the Loan
Commitments remain in effect, or any other amount is owing by Borrower to
Administrative Agent or any Lender under any Loan Document or otherwise in
respect of the Loans, Borrower shall not do any or all of the following:
Section 7.01 Mergers Etc. Merge or consolidate with any Person
without the prior written consent of Administrative Agent, or sell, assign,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) (or enter into any agreement to do any of the foregoing)
provided, however, that in the case of a merger or consolidation where the net
worth of the entity following such merger or consolidation is equal to or
greater than Borrower's net worth immediately prior thereto, Administrative
Agent's consent shall not be unreasonably withheld.
Section 7.02 Secondary Financing. Enter into any junior
financing arrangement with any Person with any Property as collateral therefor,
without the prior written consent of Administrative Agent, which consent may be
withheld at Administrative Agent's sole option.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01 Events of Default. Any of the following events
shall be an "Event of Default":
(1) If Borrower shall: fail to pay the principal of any Notes
as and when due; or fail to pay interest accruing on any Notes as and
when due, and such failure to pay shall continue unremedied for five
(5) Business Days after the due date of such interest; or fail to pay
any fee or any other amount due under this Agreement or any other Loan
Document as and when due and such failure to pay shall continue
unremedied for two (2) Business Days after notice by Administrative
Agent of such failure to pay; or
31
(2) If any representation or warranty made by Borrower in this
Agreement or in any other Loan Document or which is contained in any
certificate, document, opinion, financial or other statement furnished
at any time under or in connection with a Loan Document shall prove to
have been incorrect in any material respect on or as of the date made;
or
(3) If Borrower shall fail to perform or observe any term,
covenant or agreement contained in this Agreement (other than
obligations specifically referred to elsewhere in this Section 8.01) or
any other Loan Document, or any other document executed by Borrower and
delivered to Administrative Agent or Lenders in connection with the
transactions contemplated hereby and such failure under this clause
shall remain unremedied for thirty (30) consecutive days after notice
thereof to Borrower (or such shorter cure period as may be expressly
prescribed in the applicable document); provided, however, that if any
such default under clause (ii) above cannot by its nature be cured
within such thirty (30) day, or shorter, as the case may be, grace
period and so long as Borrower shall have commenced cure within such
thirty (30) day, or shorter, as the case may be, grace period and
shall, at all times thereafter, diligently prosecute the same to
completion, Borrower shall have an additional period, not to exceed
sixty (60) days, to cure such default; in no event, however, is the
foregoing intended to effect an extension of the Maturity Date; or
(4) If Borrower shall fail (i) to pay any Debt (other than the
payment obligations described in paragraph (1) of this Section) in an
amount equal to or greater than $250,000 in any such case when due
(whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) after the expiration of any applicable grace
period; or (ii) to perform or observe any material term, covenant, or
condition under any agreement or instrument relating to any such Debt,
when required to be performed or observed, if the effect of such
failure to perform or observe is to accelerate, or to permit the
acceleration of, after the giving of notice or the lapse of time, or
both, the maturity of such Debt, or any such Debt shall be declared to
be due and payable, or required to be prepaid (other than by a
regularly scheduled or otherwise required prepayment), prior to the
stated maturity thereof; or
(5) If Borrower shall (i) generally not, or be unable to, or
shall admit in writing its inability to, pay its debts as such debts
become due; or (ii) make an assignment for the benefit of creditors,
petition or apply to any tribunal for the appointment of a custodian,
receiver or trustee for it, all or any portion of any Property or a
substantial part of its other assets; or (iii) commence any proceeding
under any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation Law of any jurisdiction, whether now
or hereafter in effect; or (iv) have had any such petition or
application filed or any such proceeding shall have been commenced,
against it or all or any portion of any Property, in which an
adjudication or appointment is made or order for relief is entered, or
which petition, application or proceeding remains undismissed or
unstayed for a period of ninety (90) days or more; or (v) be the
subject of any proceeding under which all or any portion of any
Property or all or a substantial part of its other assets may be
subject to seizure, forfeiture or divestiture; or (vi) by any act or
omission indicate its consent to, approval of or acquiescence in any
such petition, application or proceeding or order for relief or the
appointment of a custodian, receiver or trustee for all or any portion
of any Property or all or any substantial part of its other property;
or (vii) suffer any such custodianship, receivership or trusteeship for
all or any portion of any Property or all or any substantial part of
its other property, to continue undischarged for a period of ninety
(90) days or more; or
32
(6) If one or more judgments, decrees or orders for the
payment of money in excess of $250,000 (excluding any such judgments,
decrees or orders which are fully covered by insurance) in the
aggregate shall be rendered against Borrower, and any such judgments,
decrees or orders shall continue unsatisfied and in effect for a period
of thirty (30) consecutive days without being vacated, discharged,
satisfied or stayed or bonded pending appeal; or
(7) If any of the following events shall occur or exist with
respect to Borrower or any ERISA Affiliate: (i) any Prohibited
Transaction involving any Plan; (ii) any Reportable Event with respect
to any Plan; (iii) the filing under Section 4041 of ERISA of a notice
of intent to terminate any Plan or the termination of any Plan; (iv)
any event or circumstance which would constitute grounds for the
termination of, or for the appointment of a trustee to administer, any
Plan under Section 4042 of ERISA, or the institution by the PBGC of
proceedings for any such termination or appointment under Section 4042
of ERISA; or (v) complete or partial withdrawal under Section 4201 or
4204 of ERISA from a Multiemployer Plan or the reorganization,
insolvency, or termination of any Multiemployer Plan; and in each case
above, if such event or conditions, if any, could in the reasonable
opinion of any Lender subject Borrower to any tax, penalty, or other
liability to a Plan, Multiemployer Plan, the PBGC or otherwise (or any
combination thereof) which in the aggregate exceeds or is likely to
exceed $50,000; or
(8) If any Mortgage shall at any time and for any reason cease
to create a valid and perfected first priority Lien on the Mortgaged
Property purported to be subject thereto or to be in full force and
effect; or shall be declared null and void; or the validity or
enforceability thereof shall be contested by any party thereto, or any
party thereto shall deny any further liability or obligation
thereunder; or
(9) If an "Event of Default" shall occur under any Mortgage
(as such quoted term is defined therein).
Section 8.02 Remedies. If any Event of Default shall occur and
be continuing, Administrative Agent shall, upon request of the Required Lenders,
(i) declare the outstanding balance of the Notes, all interest thereon, and all
other amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon such balance, all such interest, and all
such amounts due under this Agreement and under the other Loan Documents shall
become and be forthwith due and payable, without presentment, demand, protest,
or further notice of any kind, all of which are hereby expressly waived by
Borrower and/or (ii) exercise any remedies provided in any of the Loan Documents
or by Law.
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ARTICLE IX
ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS
Section 9.01 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 to 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 any Lender 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 or for any failure by Borrower
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 9.02 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 the Loan made by it for all purposes hereof and shall not be required
to deal with any Person who has acquired a Participation in any Loan or
Participation 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, hereunder 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 Lenders and any other holder of all or
any portion of any Loan or Participation.
Section 9.03 Defaults. Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default or 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 Default or Event of Default that
Administrative Agent sends to Borrower. Administrative Agent, following
consultation with Lenders, shall (subject to Section 9.07) take such action with
respect to such Default or Event of Default which is continuing 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 advisable in the best interest of
Lenders. In no event shall Administrative Agent be required to take any such
action which it determines to be contrary to the Loan Documents or to Law. Each
Lender 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 9.04 Rights of Administrative Agent as a Lender. With
respect to its Loan Commitment and the Loan provided by it, 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 term "Lender" or "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 (and any
Affiliates of Borrower) as if it were not acting as Administrative Agent.
Section 9.05 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 or otherwise to preserve the Lien of any of the Mortgages or
to preserve or protect any 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 Base Rate from the date of payment
by Administrative Agent and/or the other Lender(s). In addition, each Lender
agrees to indemnify Administrative Agent (to the extent not reimbursed under
Section 11.04 or under other applicable provisions of any Loan Document, but
without limiting the obligations of Borrower under Section 11.04 or such other
provisions), for its ratable share, based upon the outstanding principal
balances under its Note and the other Notes, of any and all liabilities,
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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 11.04 or under any other 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
Loan.
Section 9.06 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 Loans and of the credit of Borrower, 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, any Property) 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 any
Affiliate of Borrower) 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 9.07 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
9.05 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 an additional indemnity and cease, or not commence, the action
indemnified against until such additional indemnity is furnished.
Section 9.08 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 any such resignation or removal of Administrative Agent, the
Required Lenders shall have the right to appoint a successor Administrative
Agent which successor Administrative Agent, so long as it is reasonably
acceptable to the Required Lenders, shall be that Lender then having the
greatest Loan Commitment. 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 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. 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 removal
hereunder as Administrative Agent, the provisions of this Article IX 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.
Section 9.09 Amendments Concerning Agency Function.
Notwithstanding anything to the contrary contained herein, Administrative Agent
shall not be bound by any waiver, amendment, supplement or modification hereof
or of any other Loan Document which affects its duties, rights, and/or functions
hereunder or thereunder unless it shall have given its prior written consent
thereto.
Section 9.10 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.
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Section 9.11 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 9.12 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 the proceeds of a Loan 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 for three (3) Business Days and thereafter at the
Prime Based 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.
Section 9.13 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
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 or Borrower 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 a U.S. Internal Revenue Service Form W-8ECI in
respect of all payments to be made to such Lender by Borrower or Administrative
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Agent under this Agreement or any other Loan Document or a U.S. Internal Revenue
Service Form W-8BEN establishing such Lender's complete exemption from United
States withholding tax in respect of payments to be made to such Lender by
Borrower or Administrative Agent under this Agreement or any other Loan
Document, or such other forms, certifications, statements or documents, duly
executed and completed by such Lender as evidence of such Lender's exemption
from the withholding of U.S. tax with respect thereto. Administrative Agent
shall not be obligated to make any payments hereunder to such Lender in respect
of any Loan or Participation or such Lender's Loan Commitment or obligation to
purchase Participations until such Lender shall have furnished to Administrative
Agent the requested form, certification, statement or document.
Section 9.14 Pro Rata Treatment. Except to the extent
otherwise provided, the advance of proceeds of the Loans shall be made by
Lenders shall be made for the account of Lenders, ratably according to the
amounts of their respective Loan Commitments.
Section 9.15 Sharing of Payments Among Lenders. If a Lender
shall obtain payment of any principal of or interest on any Loan made by it
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 Loans made by the other Lenders 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 9.16 Possession of Documents. Each Lender shall keep
possession of its own Note. Administrative Agent shall hold all the other Loan
Documents and related documents in its possession and maintain separate records
and accounts with respect thereto, and shall permit Lenders and their
representatives access at all reasonable times to inspect such Loan Documents,
related documents, records and accounts.
Section 9.17 Minimum Commitment by The Dime. Until the earlier
to occur of (i) twelve (12) months from the date hereof or (ii) the date upon
which the Loan has been fully funded or Borrower is otherwise no longer entitled
to request Advances, The Dime agrees that, so long as there exists no Event of
Default, it shall retain a Loan Commitment of $26,000,000 and thereafter The
Dime hereby agrees to maintain a Loan Commitment in an amount no less than
$10,000,000, and further agrees to hold and not to participate or assign any of
such amount other than an assignment to a Federal Reserve Bank or to the Parent.
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ARTICLE X
NATURE OF OBLIGATIONS
Section 10.01 Absolute and Unconditional Obligations. Borrower
acknowledges and agrees that its obligations and liabilities under this
Agreement and under the other Loan Documents shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of any of the
Obligations, any Loan Documents or any agreement or instrument relating thereto,
(ii) any change in the time, manner or place of payment of, or in any other term
in respect of, all or any of the Obligations, or any other amendment or waiver
of or consent to any departure from any Loan Documents or any other documents or
instruments executed in connection with or related to the Obligations, (iii) any
exchange or release of any collateral, if any, or of any other Person from all
or any of the Obligations or (iv) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, Borrower or any other
Person in respect of the Obligations.
The Obligations shall not be conditioned or contingent upon
the pursuit by any Lender or any other Person at any time of any right or remedy
against Borrower or any other Person which may be or become liable in respect of
all or any part of the Obligations or against any collateral or security or
guarantee therefor or right of setoff with respect thereto.
Section 10.02 Exculpation. Neither Borrower nor any Principal
of Borrower 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 Administrative Agent for
the account of Lenders or a duly appointed receiver of the Premises; (viii) any
40
failure to deliver to Administrative Agent or 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 to Lenders for the reimbursement to
Administrative Agent, for the account of Lenders, together with interest as
provided in the Loan Documents, of all sums advanced or expended by Lenders
after or in respect of any default under the Loan Documents; (xii) liability as
landlord under any lease(s) relating to the Mortgaged Property which Lenders are
or become obligated for by virtue of Lenders succeeding to the interests of
Borrower; (xiii) liability under any agreement relating to the operation or
maintenance of the Mortgaged Property which Lenders are or become obligated for
by virtue of Lenders succeeding to the interests of Borrower; (xiv) 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 from leases of the Mortgaged Property was available to pay same; or (xv)
liability for Hazardous Substances that may exist upon or be discharged from the
Mortgaged Property. Borrower and any Principal of Borrower 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 Principal of Borrower 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 Administrative Agent or a receiver in
Administrative Agent's or such receiver's efforts to collect Rents directly from
tenants after a default under the Loan Documents.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Binding Effect of Request for Advance. By its
acceptance of the advance of proceeds of the Loans under this Agreement,
Borrower shall be bound in all respects by the request for advance submitted on
its behalf in connection therewith with the same force and effect as if Borrower
had itself executed and submitted the request for advance and whether or not the
request for advance is executed and/or submitted by an authorized person.
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Section 11.02 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 therefrom shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders and,
solely for purposes of its acknowledgment thereof, Administrative Agent, 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) amend this
Section or any other provision requiring the consent of all Lenders; (v) waive
any default under paragraph (5) of Section 8.01; (vi) release, in whole or in
part, any guarantor of Borrower's obligations under the Loans other than in
accordance with the Loan Documents; or (vii) release any material portion of the
Mortgaged Property under any Mortgage or of any other collateral now or
hereafter given for the Loans other than in accordance with the Loan Documents.
Any advance of proceeds of the Loans made prior to or without the fulfillment by
Borrower of all of the conditions precedent thereto, whether or not known to
Administrative Agent and Lenders, shall not constitute a waiver of the
requirement that all conditions, including the non-performed conditions, shall
be required with respect to all future advances, if any. No failure on the part
of Administrative Agent or any Lender to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof or preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by Law.
All communications from Administrative Agent to Lenders
requesting Lenders' determination, consent, approval or disapproval (x) shall be
given in the form of a written notice to each Lender, (y) 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 (z) 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 Loans) 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 11.03 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.
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Section 11.04 Expenses; Indemnification. Borrower covenants
and agrees to pay all reasonable costs, expenses and charges (including, without
limitation, all reasonable fees and expenses of counsel, engineers, appraisers
and consultants) incurred by Administrative Agent 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 (x) the
fees and expenses of legal counsel for any Lender other than The Dime incurred
in connection with said counsel's review of this Agreement and the other Loan
Documents prior to execution and (y) costs, expenses and charges incurred by
Administrative Agent and Lenders in connection with the administration or
syndication of the Loan. In connection with the foregoing, Lenders agree, to the
extent practicable, to appoint a single counsel and local counsel, selected by
Administrative Agent, to act on behalf of all Lenders in connection with the
enforcement of the Loan Documents. 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 for Prime
Based Loans from the date of demand. Borrower agrees to indemnify Administrative
Agent and each Lender and their respective directors, officers, employees and
agents from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages or expenses incurred by any of them arising out of
or by reason of (A) any claims by brokers due to acts or omissions by Borrower
or (B) 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 Loans, including
without limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
The obligations of Borrower under this Section and under
Article III shall survive the repayment of all amounts due under or in
connection with any of the Loan Documents and the termination of the Loan
Commitments.
Section 11.05 Assignment; Participation. This Agreement shall
be binding upon, and shall inure to the benefit of, Borrower, Administrative
Agent, Lenders and their respective successors and permitted assigns. Borrower
may not assign or transfer its rights or obligations hereunder.
Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Loan
("Participations"). In the event of any such grant by a Lender of a
Participation to a Participant, whether or not Borrower or Administrative Agent
was given notice, 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, however, 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 11.02 without the consent of
the Participant.
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Subject to the provisions of Section 9.17, any Lender may at
any time assign to any bank or other institution with the consent of
Administrative Agent and, provided there exists no Event of Default, of
Borrower, which consents shall not be unreasonably withheld or delayed, 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 such consented to bank or other
institution, 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, in each case, after giving effect to such
assignment the Assignee's Loan Commitment, and, in the case of a partial
assignment, the assigning Lender's Loan Commitment, each will be equal to or
greater than $10,000,000; provided, further, however, that the assigning Lender
shall not be required to maintain a Loan Commitment in the minimum amount
aforesaid in the event it assigns all of its rights and obligations under this
Agreement and its Note. 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 Lender under 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 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 original Note of the assigning
Lender. The obligations evidenced by such substitute notes shall constitute
"Obligations" for all purposes of this Agreement and the other Loan Documents
and shall be secured by the Mortgages. 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 9.13. Each Assignee shall be
deemed to have made the representations contained in, and shall be bound by the
provisions of, Section 9.13.
Any Lender may at any time freely 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.
44
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
or the Loans may be exhibited to and retained by any such Participant or
assignee or prospective Participant or assignee. In connection with a Lender's
delivery of any financial statements and appraisals to any such Participant or
assignee or prospective Participant or assignee, such Lender shall also indicate
that the same are delivered on a confidential basis. Borrower agrees to provide
all assistance reasonably requested by a Lender to enable such Lender to sell
Participations or make assignments of its Loan as permitted by this Section.
Upon request, each Lender agrees to provide Administrative Agent and Borrower
with notice of all Participations sold by such Lender.
Section 11.06 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.
Section 11.07 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.
Section 11.08 Setoff. In addition to (and without limitation
of) any right of setoff, bankers' lien or counterclaim a Lender may otherwise
have, Administrative Agent and each Lender shall be entitled, at its option, 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, in Dollars or in any other currency, against any amount
payable by Borrower to Administrative Agent or such Lender under this Agreement
or such Lender's Note or 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 setoff by a Lender)
Administrative Agent thereof; provided, however, that failure to give such
notice shall not affect the validity thereof.
Section 11.09 Severability. The provisions of this Agreement
are intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the validity
or enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
45
Section 11.10 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 11.11 Integration. The Loan Documents set forth the
entire agreement among the parties hereto relating to the transactions
contemplated thereby and supersede any prior oral or written statements or
agreements with respect to such transactions; provided, however, that the terms
of the Term Sheet shall survive execution of this Loan Agreement and remain in
full force and effect.
Section 11.12 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).
Section 11.13 Waivers. In connection with the obligations and
liabilities as aforesaid, Borrower hereby waives (i) promptness and diligence,
(ii) notice of any actions taken by Administrative Agent or any Lender under
this Agreement, 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 the Obligations, the omission of or delay
in which, but for the provisions of this Section, might constitute grounds for
relieving Borrower of its obligations hereunder, (iv) any requirement that
Administrative Agent or any Lender protect, secure, perfect or insure any Lien
on all or any portion of the Mortgaged Property under any Mortgage or on any
other collateral or exhaust any right or take action against Borrower or any
other Person or against all or any portion of the Mortgaged Property under any
Mortgage or any other collateral, (v) any right or claim of right to cause a
marshalling of the assets of Borrower and (vi) all rights of subrogation or
contribution, whether arising by contract or operation of law (including,
without limitation, any such right arising under the Federal Bankruptcy Code) or
otherwise by reason of payment by Borrower, either jointly or severally,
pursuant to this Agreement or any other Loan Document.
Section 11.14 Jurisdiction; Immunities. Borrower,
Administrative Agent and each Lender hereby irrevocably submit to the
jurisdiction of any New York State or U.S. federal court sitting in New York
City over any action or proceeding arising out of or relating to this Agreement,
the Notes or any other Loan Document. Borrower, Administrative Agent, and each
Lender irrevocably agree that all claims in respect of such action or proceeding
may be heard and determined in such New York State or U.S. federal court.
Borrower, Administrative Agent, and each Lender irrevocably consent to the
service of any and all process in any such action or proceeding by the mailing
of copies of such process to Borrower, Administrative Agent or each Lender, as
the case may be, at the addresses specified herein. Borrower, Administrative
Agent and each Lender agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by Law. Borrower,
Administrative Agent and each Lender further waive any objection to venue in the
State of New York and any objection to an action or proceeding in the State of
New York on the basis of forum non conveniens.
46
Nothing in this Section shall affect the right of Borrower,
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Law.
To the extent that Borrower, Administrative Agent or any
Lender have or hereafter may acquire any immunity from jurisdiction of any court
or from any legal process (whether from service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, Borrower, Administrative Agent and each Lender hereby
irrevocably waive such immunity in respect of its obligations under this
Agreement, the Notes and any other Loan Document.
BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER WAIVE ANY RIGHT
EACH SUCH PARTY MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT, THE NOTES OR THE LOANS. IN
ADDITION, 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 LOANS, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (X)
INJUNCTIVE RELIEF, (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 11.15 Gross-Up For Taxes. All payments made by
Borrower under this Agreement and the Notes shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, 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 a Lender as a result of
a present or former connection between such 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
such Lender's having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or its Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to such Lender hereunder or under its Note, the amounts so payable to
such Lender shall be increased to the extent necessary to yield to such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable with respect to the its Loan at the rates or in the amounts specified in
this Agreement and its Note; provided, however, that Borrower shall not be
required to increase any such amounts payable to such Lender if such Lender is
not organized under the Laws of the United States or a state thereof and such
Lender fails to comply with the requirements of Section 9.13. Whenever any
Non-Excluded Taxes are payable by Borrower, as promptly as possible thereafter
Borrower shall send to Administrative Agent for the account of such 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 Administrative Agent the
required receipts or other required documentary evidence, Borrower shall
indemnify such Lender for any incremental taxes, interest or penalties that may
become payable by such 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 Notes and all other amounts payable hereunder.
47
Section 11.16 Exculpation of Trustees. This Loan Agreement is
executed by certain Trustees of Acadia Realty Trust (the "Trust"), the general
partner of Borrower, not individually, but solely in their representative
capacities as trustees of the Trust. Administrative Agent waives any rights to
bring a cause of action against the individuals executing this Loan Agreement as
trustees of the Trust (except for any cause of action based upon lack of
authority or fraud), and Administrative Agent agrees to look solely to the
Mortgaged Property or, if permitted under this Loan Agreement or any other Loan
Document, the other assets of Borrower, for the enforcement of any claim
Administrative Agent at any time may have under this Loan Agreement or under the
Loan Documents.
Section 11.17 Release of Collateral. 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 the Lenders, an amount equal to the lesser of (x) the Release Price for the
Property that is the subject of such release 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) the Property not so released is
generating net income available for debt service equal to 140% of debt service
on the sums of (a) the Loan as reduced by the Release Price and (b) any Loan
Allocation available in respect of the Property not being released as determined
by Lender in its reasonable judgment, (iii) Administrative Agent receives an
endorsement to the title insurance policy insuring that the lien of the
Mortgages not so released will not be impaired by virtue of said release and
(iv) 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 Loan Allocation
for such Property.
[Remainder of page intentionally left blank.]
48
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
RD WOONSOCKET ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
(as Borrower)
By: Acadia Property Holdings, LLC, its general
partner
By: Acadia Realty Limited Partnership,
its sole member
By: Acadia Realty Trust, a
Maryland real estate
investment trust, its general
partner
By
----------------------------
Name:
Title:
RD BLOOMFIELD ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
(as Borrower)
By: Acadia Property Holdings, LLC, its general
partner
By: Acadia Realty Limited Partnership,
its sole member
By: Acadia Realty Trust, a
Maryland real estate
investment trust, its general
partner
By
----------------------------
Name:
Title:
Address for notices:
c/o Acadia Realty Trust
20 Soundview Marketplace
Port Washington, New York 11050
Attention: Robert Masters, Esq.
Telephone: 516/767-8830, ext. 339
Telecopy: 516/767-8839
THE DIME SAVINGS BANK OF NEW YORK,
FSB (as Lender and Administrative Agent)
By
-------------------------------------------------------
Name:
Title:
Address for notices, Administrative Agent's Office
and Applicable Lending Office:
The Dime Savings Bank of New York, FSB
EAB Plaza, 13th Floor
Uniondale, New York 11556
Attention: Mr. Arthur Bellini
Telephone: 212/642-7434
Telecopy: 212/642-7460
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 paragraph 10.02 hereof.
ACADIA REALTY LIMITED PARTNERSHIP
By: Acadia Realty Trust, a Maryland real
estate investment trust, its general
partner
By
-----------------------------------
Name:
Title:
EXHIBIT A
AUTHORIZATION LETTER
____________, 2001
[Name and address of Administrative Agent]
Re: Term Loan Agreement dated as of ____________, 2001 (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:
[NAMES]
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.
Without limiting the foregoing, we hereby unconditionally
authorize any one of the above-designated persons to execute and the request for
advance of proceeds of the Loans to you under the Loan Agreement with the
identical force and effect in all respects as if executed and submitted by us.
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,
[BORROWER]
By
------------------------------
Name:
Title:
2
EXHIBIT B
NOTE
$___________ New York, New York
__________, 2001
For value received, [BORROWER] a _______________ ("Borrower"),
hereby promises to pay to the order of ___________ or its successors or assigns
(collectively, "Lender"), at the principal office of ________________________
located at _______________________________________________ ("Administrative
Agent") for the account of the Applicable Lending Office of Lender, the
principal sum of ________ Dollars ($____________), or if less, the amount loaned
by 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. Borrower also 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. The Loan Agreement
provides in certain cases for the accrual of interest at the Default Rate.
The date and amount of the advance of the Loan made by Lender
to Borrower under the Loan Agreement, 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 continuation thereof.
This Note is one of the Notes referred to in the Term Loan
Agreement dated as of ____________, 2001 (as the same may be amended from time
to time, the "Loan Agreement") among Borrower, the "Lenders" named therein
(including Lender) 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 each of the
Mortgage is hereby made for a description of the "Mortgaged Property" encumbered
thereby and the rights of Borrower and Lenders (including Lender) with respect
to such Mortgaged Property. In addition, the Loan Agreement contains, among
other things, provisions for the prepayment of and acceleration of this Note
upon the happening of certain stated events.
Borrower 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 any
of the Mortgaged Property under any of the Mortgages, whether with or without
notice to Borrower, and Borrower 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, Borrower
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.
No recourse shall be had under this Note against Principal of
Borrower except as and to the extent set forth in Section 10.02 of the Loan
Agreement.
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, 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); 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.
[BORROWER]
By
--------------------------------
Name:
Title:
2
Amount of Amount of Balance
Date Advance Payment Outstanding Notation by
---- ------- ------- ----------- -----------
3
EXHIBIT C
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of __________,
2001, between [insert name of assigning Lender] ("Assignor") and [insert name of
Assignee] ("Assignee").
Preliminary Statement
1. This Assignment and Assumption Agreement (this "Agreement")
relates to the Term Loan Agreement dated _____________, 2001 (as the same may be
amended from time to time, the "Loan Agreement") among ____________
("Borrower"), the lenders party thereto (each a "Lender" and, collectively,
"Lenders") and ________________, as administrative agent for Lenders
("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 a Loan Commitment to Borrower in an aggregate
principal amount of $____________ ("Assignor's Loan Commitment").
3. The aggregate outstanding principal amount of Assignor's
Loan made pursuant to Assignor's Loan Commitment at 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 its Loan and Loan
Commitment thereunder in an amount equal to $__________ (collectively, the
"Assigned Loan and Commitment"); 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. Upon the execution and
delivery hereof by Assignor, Assignee, Administrative Agent (and, if applicable,
Borrower), 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 a Loan and a Loan Commitment in amounts equal to
the Assigned Loan and Commitment and (2) the Loan and 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 $___________.
Except as otherwise agreed by Assignor and Assignee, it is understood that any
fees paid to Assignor under the Loan Agreement are for the account of Assignor.
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. Consents; Execution and Delivery of Notes. This
Agreement is conditioned upon the consent of Administrative Agent and, provided
there exists no Event of Default, of Borrower pursuant to Section 11.05 of the
Loan Agreement. The execution of this Agreement by Borrower (if required) and
Administrative Agent is evidence of this consent. [Consents not required for
certain assignments to entities related to a Lender.] Pursuant to Section 11.05
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.
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 Loans, credit analysis of Borrower and the other parties to
the Loan Documents, and decision to enter into this Agreement, and will continue
to be responsible for making its own independent appraisal of the collateral, if
any, for the Loans 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 and warrants 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 9.13 of the Loan Agreement.
[Remainder of page intentionally left blank.]
3
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.
----------------------------------------
(as Assignor)
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
----------------------------------------
(as Assignee)
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
Applicable Lending Office and Address for
notices:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Attention: _______________
Telephone: _______________
Telecopy: _______________
-----------------------------------------
(as Administrative Agent)
4
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
-----------------------------------
(as Borrower)
By
----------------------------------
Name:
Title:
5
EXHIBIT D
SOLVENCY CERTIFICATE
The person executing this certificate is the _______________
of [BORROWER], 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(18) of the Term Loan Agreement dated
the date hereof (the "Loan Agreement") among Borrower, the lenders party thereto
(each a "Lender" and collectively, "Lenders") and _______________________, 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 _________ 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 or she 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 or she 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 ____________, 2001.
By
------------------------
Name:
Title:
EXHIBIT E
NOTICE-OF-ASSIGNMENT OF LEASE
(On Letterhead of Borrower)
_____________, 2001
[Name and Address of Tenant]
Re: Lease Dated:
Mortgagee: _______________________ (as administrative
agent for itself and other lenders)
Address of Mortgagee:
Mortgage Dated:
Dear Sir/Madam:
The undersigned has assigned by a mortgage or deed of trust
(the "Mortgage") dated as shown above to the Mortgagee identified above
(hereinafter "Mortgagee") 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, said 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
Mortgagee or upon the lenders for whom Mortgagee is acting as administrative
agent, or their respective successors or assigns.
Pursuant to said assignment you are hereby notified that in
the event of a demand on you by Mortgagee 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 Mortgagee and we hereby agree that
the receipt by you of such a demand shall be conclusive evidence of Mortgagee's
right to the receipt thereof and that the payment of the rents by you to
Mortgagee pursuant to such demand shall constitute performance in full of your
obligation under the Lease for the payment of rent to the undersigned.
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NOTE: To be sent in accordance with notice requirements of the Lease.
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* 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 Mortgagee 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 Mortgagee that it shall notify Mortgagee of
any default on the part of the landlord under the Lease which would entitle the
undersigned to cancel the Lease or to abate the rent payable thereunder, and
further agrees that, notwithstanding any provision of the Lease, no notice of
cancellation thereof shall be effective unless Mortgagee 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.
[NAME OF TENANT]
By:
----------------------------------
------------------------,
its authorized officer
2
SCHEDULE A
Remedial Work
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND CONSTRUCTION OF TERMS.........................................1
Section 1.01 Definitions...................................................................1
Section 1.02 Accounting Terms.............................................................10
Section 1.03 Computation of Time Periods..................................................10
Section 1.04 Rules of Construction........................................................10
ARTICLE II THE LOANS....................................................................10
Section 2.01 The Loans....................................................................10
Section 2.02 Nature of Lenders' Obligations...............................................10
Section 2.03 Purpose......................................................................10
Section 2.04 Procedures for Advances......................................................11
Section 2.05 Interest.....................................................................11
Section 2.06 Notes........................................................................13
Section 2.07 Prepayments..................................................................13
Section 2.08 Method of Payment............................................................13
Section 2.09 Application of Payments......................................................14
Section 2.10 Applicable Interest Rate.....................................................14
Section 2.11 Late Payment Premium.........................................................14
ARTICLE III YIELD PROTECTION; ILLEGALITY; ETC............................................15
Section 3.01 Additional Costs.............................................................15
Section 3.02 Limitation on Types of Loans.................................................16
Section 3.03 Illegality...................................................................16
Section 3.04 Treatment of Affected Loans..................................................17
Section 3.05 Certain Compensation.........................................................17
Section 3.06 Capital Adequacy.............................................................17
Section 3.07 Substitution of Lenders......................................................18
Section 3.08 "Lender" to Include Participants.............................................19
ARTICLE IV CONDITIONS PRECEDENT.........................................................19
Section 4.01 Conditions Precedent.........................................................19
ARTICLE V REPRESENTATIONS AND WARRANTIES...............................................24
Section 5.01 Due Organization.............................................................24
Section 5.02 Power and Authority; No Conflicts; Compliance With Laws......................24
Section 5.03 Legally Enforceable Agreements...............................................24
Section 5.04 Litigation...................................................................24
Section 5.05 Good Title to Properties.....................................................25
Section 5.06 Taxes........................................................................25
Section 5.07 ERISA........................................................................25
Section 5.08 No Default on Outstanding Judgments or Orders................................25
Section 5.09 No Defaults on Other Agreements..............................................26
Section 5.10 Government Regulation........................................................26
Section 5.11 Environmental Protection.....................................................26
Section 5.12 Solvency.....................................................................26
Section 5.13 Financial Statements.........................................................26
Section 5.14 Insurance....................................................................26
Section 5.15 Accuracy of Information; Full Disclosure.....................................27
Section 5.16 Separate Tax and Zoning Lot..................................................27
Section 5.17 Zoning and other Laws; Covenants and Restrictions............................27
Section 5.18 Utilities Available..........................................................27
Section 5.19 Creation of Liens............................................................27
Section 5.20 Roads........................................................................27
Section 5.21 Premises Documents and Leases................................................27
(I)
Page
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ARTICLE VI AFFIRMATIVE COVENANTS........................................................28
Section 6.01 Maintenance of Existence.....................................................28
Section 6.02 Maintenance of Records.......................................................28
Section 6.03 Maintenance of Insurance.....................................................28
Section 6.04 Compliance with Laws; Payment of Taxes.......................................28
Section 6.05 Right of Inspection..........................................................28
Section 6.06 Compliance With Environmental Laws...........................................28
Section 6.07 Maintenance of Properties....................................................29
Section 6.08 Payment of Costs.............................................................29
Section 6.09 Reporting and Miscellaneous Document Requirements............................29
Section 6.10 Continuing Accuracy of Representations and Warranties........................30
Section 6.11 Premises Documents; Leases...................................................30
Section 6.12 Compliance with Covenants, Restrictions and Easements........................30
Section 6.13 Maintenance, Management, Service and Leasing Contracts.......................30
Section 6.14 Remedial Work................................................................31
ARTICLE VII NEGATIVE COVENANTS...........................................................31
Section 7.01 Mergers Etc..................................................................31
Section 7.02 Secondary Financing..........................................................31
ARTICLE VIII EVENTS OF DEFAULT............................................................31
Section 8.01 Events of Default............................................................31
Section 8.02 Remedies.....................................................................33
ARTICLE IX ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS................................34
Section 9.01 Appointment, Powers and Immunities of Administrative Agent...................34
Section 9.02 Reliance by Administrative Agent.............................................34
Section 9.03 Defaults.....................................................................35
Section 9.04 Rights of Administrative Agent as a Lender...................................35
Section 9.05 Sharing of Costs by Lenders; Indemnification of Administrative Agent.........35
Section 9.06 Non-Reliance on Administrative Agent and Other Lenders.......................36
Section 9.07 Failure of Administrative Agent to Act.......................................37
Section 9.08 Resignation or Removal of Administrative Agent...............................37
Section 9.09 Amendments Concerning Agency Function........................................37
Section 9.10 Liability of Administrative Agent............................................37
Section 9.11 Transfer of Agency Function..................................................38
Section 9.12 Non-Receipt of Funds by Administrative Agent; Adjustments....................38
Section 9.13 Withholding Taxes............................................................38
Section 9.14 Pro Rata Treatment...........................................................39
Section 9.15 Sharing of Payments Among Lenders............................................39
Section 9.16 Possession of Documents......................................................39
Section 9.17 Minimum Commitment by The Dime...............................................39
(ii)
Page
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ARTICLE X NATURE OF OBLIGATIONS........................................................40
Section 10.01 Absolute and Unconditional Obligations.......................................40
Section 10.02 Exculpation..................................................................40
ARTICLE XI MISCELLANEOUS................................................................41
Section 11.01 Binding Effect of Request for Advance........................................41
Section 11.02 Amendments and Waivers.......................................................41
Section 11.03 Usury........................................................................42
Section 11.04 Expenses; Indemnification....................................................42
Section 11.05 Assignment; Participation....................................................43
Section 11.06 Documentation Satisfactory...................................................45
Section 11.07 Notices......................................................................45
Section 11.08 Setoff.......................................................................45
Section 11.09 Severability.................................................................45
Section 11.10 Counterparts.................................................................46
Section 11.11 Integration..................................................................46
Section 11.12 Governing Law................................................................46
Section 11.13 Waivers......................................................................46
Section 11.14 Jurisdiction; Immunities.....................................................46
Section 11.15 Gross-Up For Taxes...........................................................47
Section 11.16 Exculpation of Trustees......................................................48
Section 11.17 Release of Collateral........................................................48
EXHIBIT A - Authorization Letter
EXHIBIT B - Note
EXHIBIT C - Assignment and Assumption Agreement
EXHIBIT D - Solvency Certificate
EXHIBIT E - Notice of Assignment of Lease
SCHEDULE A - Remedial Work
(iii)