================================================================================
REVOLVING LOAN AGREEMENT
dated as of November 22, 2002
between
WASHINGTON MUTUAL BANK, FA
(Lender)
Address of Lender: EAB Plaza - East Tower
Thirteenth Floor
Uniondale, New York 11556-0123
and
RD ELMWOOD ASSOCIATES, L.P.
(Borrower)
Address of Borrower: c/o Acadia Realty Trust
20 Soundview Marketplace
Port Washington, New York 11050
Loan No. 4130963
================================================================================
REVOLVING LOAN AGREEMENT (this "Agreement") dated as of November 22,
2002 by and between RD ELMWOOD ASSOCIATES, L.P., a Delaware limited partnership
having an address c/o Acadia Realty Trust, 20 Soundview Marketplace, Port
Washington, New York 11050 ("Borrower"), and WASHINGTON MUTUAL BANK, FA, a
banking corporation chartered under the laws of the United States, having an
office at EAB Plaza, East Tower, Thirteenth Floor, Uniondale, New York
11556-0123 ("Lender").
Borrower desires that Lender extend credit as provided herein, and
Lender is prepared to extend such credit on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, Borrower and Lender hereby agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
-------------------------------------
Section 1.01. Definitions. The following terms, as used in this
Agreement, shall have the following meanings:
"Authorization Letter" -- A letter from Borrower to Lender in the form
of EXHIBIT A attached hereto setting forth, among other things, the name of each
person authorized to execute Requisitions hereunder on Borrower's behalf.
"Code" -- The Internal Revenue Code of 1986.
"Default" -- Any event or circumstance which, with the giving of notice
or the passage of time, or both, would become an Event of Default.
"Default Rate" -- The rate (or, if more than one, the highest of the
rates) of interest per annum provided in the Note, plus 5%, but in no event to
exceed the maximum rate allowed by law.
"Dollars" and "$" -- Lawful money of the United States of America.
"Employee Benefit Plan" -- Any employee benefit or other plan
established or maintained, or to which contributions have been made, by Borrower
or Principal of Mortgagor.
"ERISA" -- The Employee Retirement Income Security Act of 1974,
including the rules and regulations promulgated thereunder.
"ERISA Affiliate" -- Any corporation which is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Code) as Borrower and/or Principal of Mortgagor, or any trade or business which
is under common control (within the meaning of Section 414(c) of the Code) with
Borrower and/or Principal of Mortgagor, or any organization which is required to
be treated as a single employer with Borrower and/or Principal of Mortgagor
under Section 414(m) or 414(o) of the Code.
"Event of Default" -- shall have the meaning ascribed to it in the
Mortgage.
"Financial Statements" -- Statements of the assets, liabilities (direct
or contingent), income, expenses and cash flow of Borrower and Principal of
Mortgagor, prepared in accordance with sound accounting principles in the United
States of America as in effect from time to time and consistently applied.
"Governmental Authorities" -- The United States of America, any state
thereof and any political subdivision, agency, department, commission, board,
bureau or instrumentally of any of them, including any local authorities, which
exercises jurisdiction over Borrower.
"Initial Advance" -- The first advance of Loan proceeds to be made
hereunder.
"Law" -- Any federal state or local law, statute, rule, regulation,
ordinance, order, decree, directive, requirement, code, notice of violation or
rule of common law, now or hereafter in effect, and in each case as amended, and
any judicial or administrative interpretation thereof by a Governmental
Authority or otherwise, including any judicial or administrative order,
determination, consent decree or judgment.
"Lender's Counsel" - LeBoeuf, Lamb, Greene & MacRae, L.L.P., 125 West
55th Street, New York, New York 10019, Attention: Richard Weidman, Esq.
"Loan" -- The loan in the Loan Amount made by Lender to Borrower under
this Agreement.
"Loan Amount" - up to the maximum aggregate amount of $20,000,000.
"Loan Documents" -- This Agreement, the Note, the Mortgage, the
Authorization Letter and any other documents which evidence the Loan.
"Mortgage" -- The Mortgage, Assignment of Leases and Rents and Security
Agreement dated the date hereof from Borrower to Lender given to secure the
payment and performance of Borrower's obligations hereunder, under the Note and
otherwise in connection with the Loan.
"Mortgaged Property" -- shall have the meaning ascribed to it in the
Mortgage.
"Multiemployer Plan" -- Any plan defined as such in Section 3(37) of
ERISA.
"Note" -- The Promissory Note dated the date hereof, for a principal
sum equal to the Loan Amount made by Borrower to Lender to evidence the Loan.
"Pension Plan" -- Any employee pension benefit plan within the meaning
of Section 3(2) of ERISA with respect to which Borrower, Principal of Mortgagor
or any ERISA Affiliate at any relevant time has liability or an obligation to
contribute.
"Principal of Mortgagor" -- shall have the meaning ascribed to it in
the Mortgage.
2
"Requisition" -- A written statement by or on behalf of Borrower, in
form and substance satisfactory to Lender, setting forth the amount of the Loan
advance requested in each instance and instructions for the payment of the same,
and certifying the purpose for which such advance is to be used.
Section 1.02. Rules of Construction. Except as expressly provided
otherwise, when used in this Agreement (i) "or" is not exclusive, (ii)
"hereunder", "herein", "hereof'" and the like refer to this Agreement as a
whole, (iii) "Article", "Section", "Schedule" and "Exhibit" refer to Articles,
Sections, Schedules and Exhibits of this Agreement, (iv) terms defined in the
singular shall have a correlative meaning when used in the plural and vice
versa, (v) a reference to a Law includes any amendment, modification or
supplement to, or replacement of, such Law and (vi) a reference to a document
shall mean such document as the same may be amended, modified or supplemented
from time to time in accordance with its terms. The cover page and the Exhibits
and Schedules, if any, annexed hereto are incorporated as a part of this
Agreement with the same effect as if set forth in the body hereof. Any table of
contents and all captions and headings herein are for convenience only and shall
not affect the interpretation or construction hereof.
ARTICLE II
THE LOAN
--------
Section 2.01. Generally. Subject to the provisions of this Agreement,
and on the basis of the representations, warranties and covenants made herein
and in the other Loan Documents, Lender will advance and Borrower will accept
the Loan Amount, in periodic disbursements as hereinafter set forth. Except as
otherwise provided herein, Lender shall from time to time advance and re-advance
to Borrower an amount equal to the excess of the Loan Amount over all previous
advances made by Lender which remain unpaid. Within the limits set forth herein,
Borrower may borrow and re-borrow from time to time under this Section 2.01, on
the 1st or the 15th day of each month (or such other day as the Lender may agree
to in its sole and absolute discretion), or if such day is not a business day on
the immediately succeeding business day, and Borrower may repay, or prepay from
time to time pursuant to the Note, and thereafter re-borrow pursuant to this
Section 2.01.
Section 2.02. Purpose. The Loan shall be made for general corporate
purposes, including general capital and working capital costs of Borrower.
Borrower covenants and agrees that in no event shall proceeds of the Loan, or
any part thereof be used, directly or indirectly, for any other purpose, for any
illegal purpose or for the purpose, whether immediate, incidental or ultimate,
of buying or carrying "margin stock" within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System, or in connection with any
hostile acquisition.
Section 2.03. Unused Line Fee. Commencing April 1, 2003, Borrower shall
pay to Lender on a quarterly basis (a) an unused line fee at a rate equal to
fifteen one-hundredths of one percent (.15%) per annum calculated upon the
amount by which the Loan Amount exceeds the average daily principal balance of
the outstanding advances of the Loan and Letter of Credit Accommodations during
the immediately preceding three (3) months (or part thereof) while this
Agreement is in effect (for example, the April 1, 2003 payment, if any, would be
in arrears for the period January 1, 2003 through March 31, 2003), which fee
shall be payable on the first day of the first month of each calendar year
quarter (January 1, April 1, July 1 and October 1) in arrears.
3
Section 2.04. Letter of Credit Accommodation. Borrower shall have the
right to use a portion of the Loan Amount, not to exceed $5,000,000, in
connection with the issuance of a letter of credit by Lender for the account of
Borrower (the "Letter of Credit"), subject to terms and conditions required by
Lender, and provided that the maturity date of the Letter of Credit is at least
thirty (30) days prior the maturity date of the Note. The fee payable by
Borrower to Lender for the Letter of Credit shall be three-quarters of one
percent (0.75%) per annum. The amount of the Letter of Credit shall be treated
as an advance of the Loan Amount for purposes of determining what portion of the
Loan Amount remains available to Borrower for borrowing hereunder, but shall
otherwise be treated as part of the unused line hereunder and be subject to the
unused line fee set forth in Section 2.04 above.
Section 2.05. Procedures for Advances. All advances of Loan proceeds
are to be made at Lender's principal office, or at such other place as Lender
may designate, by wire transfer to an account of Borrower designated in the
applicable Requisition. Borrower shall submit Requisitions to Lender no later
than 10:00 am. (New York time) on the date which is two (2) business days prior
to the date the advance is requested to be made, it being understood that Lender
shall use reasonable efforts to accommodate a funding on the date so requested.
ARTICLE III
CONDITIONS PRECEDENT
--------------------
Section 3.01. Conditions Precedent to Initial Advance. Lender shall not
be obligated to make the Initial Advance until the following conditions shall
have been satisfied:
(a) There shall exist no Default or Event of Default;
(b) The representations and warranties made to Lender herein,
in the other Loan Documents and in any other document, certificate or statement
executed or delivered to Lender in connection with the Loan shall be true and
correct on and as of the date of the advance with the same effect as if made on
such date;
(c) Lender shall have received and approved each of the
following:
(1) Loan Fees. The commitment fees payable under
Section 5.04;
(2) Loan Documents. This Agreement and each of the
other Loan Documents, duly executed by the parties thereto;
(3) Financial Statements. Current Financial
Statements and such other reasonable financial data as Lender shall require;
(4) Counsel Opinion. An opinion of Borrower's counsel
to the effects set forth on EXHIBIT B;
4
(5) Organizational Documents. If Borrower or any
general partner of Borrower is a corporation, current copies of the following
documents with respect to each:
(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 to be executed, delivered or
performed by said corporation, and
(iii) a certificate of the corporate secretary as
to the incumbency of the officers executing
any of the documents required hereby,
and, if Borrower or any general partner of Borrower is a partnership,
venture, limited liability company or trust:
(i) 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,
(ii) any certificates filed or required to be
filed by the entity in the jurisdiction of
its formation in order for it to do business
in said jurisdiction, and
(iii) any consents by partners, venturers,
members, trustees or beneficiaries required
for the consummation of the transactions
contemplated hereby;
(6) Requisition. A Requisition for the Initial
Advance; and
(7) Title Policy. A fully paid title policy insuring
the lien of the Mortgage subject to any such exceptions to title as Lender and
its counsel shall approve;
(d) Lender shall have determined in its sole discretion that
the "Loan to Value Ratio", as defined in the Note, is not greater than 65%;
(e) Lender shall have determined in its sole discretion that
the "Debt Service Coverage", as defined in the Note, is equal to or greater than
1.40:1;
(f) There shall have occurred no material adverse change in
the condition of the Mortgaged Property; and
(g) All construction required to be performed by Borrower
pursuant to that certain Lease dated December 14, 2001 (the "Pathmark Lease"),
between Borrower, as landlord, and Pathmark Stores, Inc., as tenant
("Pathmark"), shall have been completed, and Pathmark shall be occupying the
premises demised under the Pathmark Lease and be open to the public for business
and commenced paying (or become obligated to commence paying) fixed annual rent
under the Pathmark Lease; and
5
(h) The satisfaction of such additional conditions, if any,
set forth on EXHIBIT C attached hereto.
Section 3.02. Conditions to Advances After the Initial Advance.
Lender's obligation to make advances of proceeds of the Loan after the Initial
Advance shall be subject to the satisfaction of the following conditions:
(a) All conditions of Section 3.01 shall have been and, to the
extent applicable, remain satisfied as of the date of such advances;
(b) There shall exist no Default or Event of Default;
(c) The representations and warranties made to Lender herein,
in the other Loan Documents and in any other document, certificate or statement
executed or delivered to Lender in connection with the Loan shall be true and
correct on and as of the date of the advance with the same effect as if made on
such date;
(d) Lender shall have received a Requisition for the advance;
(e) Lender shall have determined in its sole discretion that
the Loan to Value Ratio is not greater than 65%;
(f) Lender shall have determined in its sole discretion that
the Debt Service Coverage is equal to or greater than 1.40:1;
(g) There shall have occurred no material adverse change in
the condition of the Mortgaged Property; and
(h) Lender shall have received a notice of title continuation
or an endorsement to the title insurance policy theretofore delivered,
indicating that since the last preceding advance, there has been no change in
the state of title and no survey exceptions not theretofore approved by the
Lender, which endorsement shall have the effect of increasing the coverage of
the policy by an amount equal to the advance then being made if the policy does
not by its terms provide for such an increase.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents and warrants to Lender that:
Section 4.01. Due Formation Power and Authority. If it or any general
partner of Borrower is a corporation, partnership, venture, limited liability
company or trust, each such entity is duly organized, validly existing and in
good standing under the Laws of the jurisdiction of its formation, and has full
power and authority to consummate the transactions contemplated hereby and to
execute, deliver and perform this Agreement and any Loan Document to which it is
a party.
6
Section 4.02. Legally Enforceable Agreements. Each Loan Document to
which Borrower or Principal of Mortgagor is a party is a legal, valid and
binding obligation of such party, 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 4.03. Financial Statements. Financial Statements have been
heretofore delivered to Lender which are true, correct and current in all
respects and which fairly present the respective financial conditions of the
subjects thereof as of the respective dates thereof; no material adverse change
has occurred in the financial conditions reflected therein since the respective
dates thereof.
Section 4.04. Compliance With Laws: Payment of Taxes. Borrower is in
compliance with, and the transactions contemplated hereby and the other Loan
Documents do not and will not violate any provision of, or require any filing,
registration, consent or approval under, any Law presently in effect having
applicability to Borrower or Principal of Mortgagor; Borrower has filed all tax
returns (federal, state and local) required to be filed and has paid all taxes,
assessments and governmental charges and levies due and payable, including
interest and penalties.
Section 4.05. Litigation. There are no actions, suits or proceedings
pending or threatened against or affecting it or Principal of Mortgagor at law,
in equity or before or by any Governmental Authorities except actions, suits or
proceedings which have been disclosed to Lender in writing and which are fully
covered by insurance or would, if adversely determined. not substantially impair
the ability of Borrower or Principal of Mortgagor to pay when due any amounts
which may become payable under the Note or to otherwise pay and perform their
respective obligations in connection with the Loan; to Borrower's knowledge,
neither it nor Principal of Mortgagor is in default with respect to any order,
writ, injunction, decree or demand of any court or Governmental Authorities.
Section 4.06. No Conflicts or Defaults. The consummation of the
transactions contemplated hereby and the performance hereof and of the other
Loan Documents have not resulted and will not result in any breach of, or
constitute a default under, any mortgage, deed of trust, lease, bank loan or
credit agreement, corporate charter, by-laws, partnership agreement or other
instrument to which Borrower or Principal of Mortgagor is a party or by which
either of them may be bound or affected.
Section 4.07. Solvency. Borrower and Principal of Mortgagor are, and
upon consummation of the transactions contemplated by this Agreement, the other
Loan Documents and any other related documents, will be, solvent.
Section 4.08. Governmental Regulation. Borrower is not subject to
regulation under the Investment Company Act of 1940 or any Law limiting its
ability to incur indebtedness for money borrowed as contemplated hereby.
7
Section 4.09. ERISA. Neither Borrower nor Principal of Mortgagor nor
any other person or entity, including any fiduciary, has engaged in any
prohibited transaction (as defined in Section 4975 of the Code or Section 406 of
ERISA) which could subject Borrower or Principal of Mortgagor or any person or
entity which they have an obligation to indemnify to any tax or penalty imposed
under Section 4975 of the Code or Section 502 of ERISA; neither Borrower nor
Principal of Mortgagor nor any ERISA Affiliate maintains, contributes to or has
any liability with respect to a Multiemployer Plan or any other plans subject to
Title IV of ERISA; each Employee Benefit Plan is administered in accordance with
its terms and in compliance with all applicable Laws, including any reporting
requirements; each Pension Plan intending to qualify under Section 401(a) or
401(k) of the Code does so qualify; there is no lien outstanding or security
interest given in connection with a Pension Plan; neither Borrower nor Principal
of Mortgagor nor any ERISA Affiliate has any liability with respect to an
accumulated funding deficiency (whether or not waived) under Section 412 of the
code or Section 302 of ERISA; neither Borrower nor Principal of Mortgagor has
any liability for retiree medical or death benefits (contingent or otherwise)
other than as required by Section 4980B of the Code; and no part of the funds to
be used by Borrower or Principal of Mortgagor in satisfaction of their
respective obligations under this Agreement and the other Loan Documents
constitute "plan assets" of any "employee benefit plan" within the meaning of
ERISA or of any "plan" within the meaning of Section 4975(e)(1) of the Code, as
interpreted by the Internal Revenue Service and the United States Department of
Labor in rules, regulations, releases or bulletins or as interpreted under
applicable case law.
Section 4.10. No Defaults. There exists no Default or Event of Default.
Section 4.11. Accuracy of Information: Full Disclosure. Neither this
Agreement nor any documents, financial statements, reports, notices, schedules,
certificates, statements or other writings furnished by or on behalf of Borrower
or Principal of Mortgagor to Lender in connection with the negotiation of this
Agreement or other Loan Documents or the consummation of the transactions
contemplated hereby, or required herein or by the other Loan Documents to be
furnished by or on behalf of Borrower or Principal of Mortgagor, 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 Lender in writing which materially
affects adversely nor, so far as Borrower can now foresee, will materially
affect adversely the business affairs or financial condition of Borrower or
Principal of Mortgagor, or the ability of Borrower or Principal of Mortgagor to
perform this Agreement and the other Loan Documents.
Section 4.12. Requisition as Reaffirmation. Each Requisition submitted
to Lender, and the receipt of the funds requested thereby, shall constitute an
affirmation by Borrower that the representations and warranties contained herein
and in the other Loan Documents remain true and correct as of the respective
dates of such Requisitions.
Section 4.13. Regulation U. No portion of the Loan shall at any time be
used, directly or indirectly, for the purpose of purchasing or carrying margin
stock.
8
ARTICLE V
COVENANTS OF BORROWER
---------------------
Borrower covenants and agrees with Lender that it will promptly:
Section 5.01. Compliance with Laws: Payment of Taxes. Comply with all
Laws applicable to it, such compliance to include, without limitation, paying
before the same become delinquent all taxes, assessments and governmental
charges imposed on it, and promptly furnish Lender with reports of any official
searches made by Governmental Authorities and any claims of violations thereof.
Section 5.02. Continuing Accuracy of Representations and Warranties.
Cause all of the representations and warranties made to Lender herein and in the
other Loan Documents to be continuously true and correct.
Section 5.03. Payment of Costs: Brokers. Pay all costs and expenses
required for the satisfaction of the conditions hereof and indemnify Lender
against claims of brokers arising by reason of the execution hereof or the
consummation of the transactions contemplated hereby.
Section 5.04. Commitment Fee. Pay to Lender a commitment fee in the
amount of $100,000 on the date hereof. In addition, if the maturity date of the
Loan is extended as provided in the Note, Borrower shall pay to Lender an
additional commitment fee in the amount of 0.15% of the Loan Amount outstanding
on the original (non-extended) maturity date stated in the Note.
Section 5.05. Financial and Other Information. Deliver and will cause
Principal of Mortgagor to deliver to Lender with reasonable promptness (i) after
the close of their respective fiscal years, but in no event later than 120 days
after the end thereof, a financial statement, including a balance sheet,
statements of profit, loss, income, cash flow, and contingent liabilities, and
setting forth, in comparative form, figures for the preceding fiscal year
certified to by an accounting firm reasonably satisfactory to Lender, (ii) after
the close of their respective fiscal quarters, but in no event later the 45 days
after the end thereof, the aforesaid financial information certified to by
Borrower or Principal of Mortgagor, as the case may be, setting forth, in
comparative form, figures for the corresponding period in the preceding fiscal
year, (iii) complete copies of Borrower's and Principal of Mortgagor's federal
and state income tax returns when filed and (iv) such other information with
respect to Borrower or Principal of Mortgagor as Lender may reasonably request
from time to time. All financial statements of Borrower or Principal of
Mortgagor shall be prepared in accordance with sound accounting principles
consistently applied and, in the case of Borrower, shall be accompanied by the
certificate of a principal financial or accounting officer of Borrower or its
general partner, dated within five (5) days of the delivery of such statements
to Lender, stating that he or she knows of no Event of Default, nor of any event
which after notice or lapse of time or both would constitute an Event of
Default, which has occurred and is continuing, or, if any such event or Event of
Default has occurred and is continuing, specifying the nature and period of
existence thereof and what action Borrower has taken or proposes to take with
respect thereto, and, except as otherwise specified, stating that Borrower has
fulfilled all of its obligations hereunder and otherwise in respect of the Loan
which are required to be fulfilled on or prior to the date of such certificate.
9
Section 5.06. [Intentionally Omitted.]
Section 5.07. Minimum Net Worth. Principal of Mortgagor shall maintain
a net worth of at least $150,000,000, with liquid assets of not less than
$5,000,000, all as determined by Lender in its sole discretion.
ARTICLE VI
EVENTS OF DEFAULT
-----------------
Section 6.01. Events of Default. An Event of Default under the Mortgage
is an Event of Default hereunder.
Section 6.02. Remedies. If any Event of Default shall occur and be
continuing, (i) Borrower shall pay Lender interest on the outstanding principal
balance under the Note at the Default Rate and (ii) Lender may (a) declare the
outstanding balance of the Note, all interest thereon, and all other amounts
payable under this Agreement and other Loan Document to be forthwith due and
payable, whereupon such balance, all such interest, and all such amounts 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 (b) exercise any remedies provided in any of the Loan Documents
or by Law.
ARTICLE VII
GENERAL. CONDITIONS AND PROVISIONS
----------------------------------
Section 7.01. Advance Not Waiver. Any advance by Lender of Loan
proceeds hereunder made prior to or without the fulfillment by Borrower of all
of the conditions precedent thereto, whether or not known to Lender, shall not
constitute a waiver by Lender of the requirement that all conditions, including
the non-performed conditions, shall be required with respect to all future
advances.
Section 7.02. Authorization to Advance for Interest, Etc. Borrower
hereby irrevocably authorizes Lender, following an Event of Default, to disburse
proceeds of the Loan to pay interest accrued on the Note as it comes due, or to
satisfy any of the conditions hereof, including, without limitation, the payment
of the fees and expenses of Lender's Counsel.
Section 7.03. Concerning Irrevocable Authorizations. Any and all
advances made at any time by Lender pursuant to the irrevocable authorizations
granted by Section 7.02 shall require no further direction, authorization or
request for disbursement from Borrower and may be made whether or not there
exists a Default or Event of Default. Any and all such disbursements shall be
added to the outstanding principal balance evidenced by the Note. The aforesaid
authorizations shall (i) not prevent Borrower from paying the interest or from
satisfying the conditions and obligations referred to in said Section, out of
its own funds, (ii) in no event be construed so as to relieve Borrower or others
from their obligations to pay interest as and when due under the Note, or to
satisfy such conditions and obligations and (iii) in no event obligate Lender to
disburse proceeds of the Loan for any such purposes.
10
Section 7.04. Ratification of Requisition by Acceptance of Advance.
Borrower agrees that, by its acceptance of any advance of Loan proceeds
hereunder, it shall be bound in all respects by the Requisition submitted on its
behalf in connection therewith with the same force and effect as if Borrower had
itself executed and submitted the Requisition is executed and/or submitted by an
authorized person
Section 7.05. No Third-Party Beneficiaries. This Agreement is solely
for the benefit of Lender and Borrower. All conditions of the obligations of
Lender to make advances hereunder are imposed solely and exclusively for the
benefit of Lender and may be freely waived or modified in whole or in part by
Lender at any time if in its sole discretion it deems it advisable to do so, and
no person other than Borrower (provided, however, that all conditions have been
satisfied) shall have standing to require Lender to make any Loan advances or to
be a beneficiary of this Agreement or any advances to be made hereunder.
Section 7.06. Documentation Etc. Satisfactory. All documentation and
proceedings deemed by Lender or Lender's Counsel to be necessary or required in
connection herewith and the documents relating hereto shall be subject to the
prior reasonable approval of, and reasonably satisfactory to, both of them as to
form and substance. In addition, the persons or parties responsible for the
execution and delivery of, and signatories to, all of such documentation shall
be reasonably acceptable to, and subject to the reasonable approval of, Lender
and Lender's Counsel. Lender or Lender's Counsel shall receive copies, certified
if requested by either of them, of all documents which they may require in
connection with the transactions contemplated hereby.
Section 7.07. Lender's Determination Conclusive. Lender shall, at all
times, be free to independently establish to its satisfaction and in its
absolute discretion, to be reasonably exercised, the existence or nonexistence
of any fact or facts the existence or nonexistence of which is a condition
hereof.
Section 7.08. 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, if to Borrower at its address stated on the cover page
hereof and if to Lender, at its address stated on the cover page hereof to the
attention of its Commercial Real Estate Department, 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 7.09. Entire Agreement; Amendments and Waivers. This Agreement
and the other Loan Documents contain the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior oral or written
agreements or statements relating to such subject matter. None of the terms and
provisions hereof or of the other Loan Documents may be changed, waived,
discharged or terminated, nor may any material departure from the provisions
hereof or thereof be consented to, except by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge, termination
or consent is sought. Any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. Without limiting
the foregoing, acceptance by Lender of any sum required to be paid pursuant
hereto or any other Loan Document, after its due date, or in an amount less than
the sum then due, shall not constitute a waiver by Lender of its right to
require prompt payment when due of all other such sums or to declare a default
or to exercise such other rights provided herein or in the other Loan Documents
for such late or reduced payment.
11
Section 7.10. [Intentionally Omitted.]
Section 7.11. Successors and Assigns. Except as herein provided, this
Agreement shall be binding upon and inure to the benefit of Borrower and Lender
and their respective heirs, personal representatives, successors and assigns.
Notwithstanding the foregoing, Borrower, without the prior written consent of
Lender in each instance, may not assign, transfer or set over to another, in
whole or in part, all or any part of its benefits, rights, duties and
obligations hereunder, including, but not limited to, performance of and
compliance with conditions hereof and the right to receive the proceeds of
current or future advances of the Loan.
Section 7.12. Severability. The provisions hereof are intended to be
severable. Any provisions hereof, or the application thereof to any person,
entity or circumstance, which, for any reason, in whole or in part, is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof (or the remaining portions of such
provision) or the application thereof to any other person, entity or
circumstance, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision (or portion thereof)
or the application thereof to any person, entity or circumstance in any other
jurisdiction.
Section 7.13. Non-Waiver; Remedies Cumulative. No failure or delay on
Lender's part in exercising any right, remedy, power or privilege (hereinafter
in this Section, each a "Remedy") hereunder or under any of the other Loan
Documents shall operate as a waiver of any such Remedy or shall be deemed to
constitute Lender's acquiescence in any default by Borrower or Principal of
Mortgagor under any of said documents. A waiver by Lender of any Remedy
hereunder or under any of the other Loan Documents on any one occasion shall not
be construed as a bar to any other or future exercise thereof or of any other
Remedy. The Remedies provided in said documents are cumulative, may be exercised
singly or concurrently and are not exclusive of any Remedies provided therein or
by law.
Section 7.14. Certain Waivers. Borrower hereby irrevocably and
unconditionally waives (i) promptness and diligence; (ii) notice of any actions
taken by Lender hereunder or under any other Loan Document or any other
agreement or instrument relating hereto except to the extent otherwise provided
herein, (iii) all other notices, demands and protests, and all other formalities
of every kind in connection with the enforcement of Borrower's obligations
hereunder and under the other Loan Documents, the omission of or delay in which,
but for the provisions of this Section, might constitute grounds for relieving
Borrower of any of its obligations hereunder or under the other Loan Documents,
(iv) any requirement that Lender protect, secure, perfect or insure any lien on
any collateral hereafter given for the Loan or exhaust any right or take any
action against Borrower, Principal of Mortgagor or any other person or entity or
against any collateral hereafter given for the Loan, (v) any right or claim of
right to cause a marshalling of Borrower assets and (vi) all rights of
subrogation or contribution, whether arising by contract or operation of law or
otherwise by reason of payment by Borrower pursuant hereto or to the other Loan
12
Documents. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN
CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF LENDER
WITH RESPECT TO THIS AGREEMENT, THE NOTE OR OTHERWISE IN RESPECT OF THE LOAN,
ANY AND EVERY RIGHT BORROWER MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY
JURY, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY
COUNTERCLAIM AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT,
ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE
SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE
ACTION AGAINST LENDER WITH RESPECT TO ANY ASSERTED CLAIM.
Section 7.15. Expenses: Indemnification. The Loan shall be made without
cost to Lender. Borrower covenants and agrees to pay all costs, expenses and
charges (including, without limitation, all fees and charges of Lender's
Counsel) incurred by Lender in connection with (i) the preparation for and
consummation of the transactions contemplated hereby or for the performance
hereof and of the other Loan Documents, and for any services which may be
required in addition to those normally and reasonably contemplated hereby and
(ii) the enforcement hereof or of any or all of the other Loan Documents. If
Borrower fails to pay promptly any costs, charges or expense required to be paid
by it as aforesaid, and Lender pays such costs, charges or expenses, Borrower
shall reimburse Lender on demand for the amounts so paid, together with interest
thereon at the Default Rate. Borrower further agrees to indemnify Lender and its
directors, officers, employees and agents from, and hold each of them harmless
against, (x) any and all losses arising out of or by reason of any investigation
or litigation or other proceedings (including any threatened investigation or
litigation or other proceedings) relating to any actual or proposed use by
Borrower of the proceeds of the Loan, including, without limitation, the fees
and disbursements of counsel incurred in connection with any such investigation,
litigation or other proceedings and (y) any and all claims, actions, suits,
proceedings, costs, expenses, losses, damages and liabilities of any kind,
including in tort, penalties and interest, arising out or by reason of any
matter relating, directly or indirectly, to the Loan (but excluding any such
losses, liabilities, claims, damages or expenses incurred solely by reason of
the gross negligence or willful misconduct of the party to be indemnified). The
obligations of Borrower under this Section shall survive the repayment of all
amounts due under or in connection with any of the Loan Documents and the
termination of the Loan.
Section 7.16. 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 7.17. Transfers of Interests in Loan. Borrower recognizes that
Lender may sell and transfer interests in the Loan, this Agreement and the other
Loan Documents to one or more participants or assignees and that all
documentation, Financial Statements and other data, or copies thereof, relevant
to Borrower, Principal of Mortgagor or the Loan, and to any advances hereunder,
may be exhibited to and retained by any such participant or assignee or
prospective participant or assignee for its files.
13
Section 7.18. Governing Law: Jurisdiction. This Agreement and the
rights and obligations of the parties hereunder shall in all respects be
governed by, and construed and enforced in accordance with, the Laws of the
State of New York (without giving effect to New York's principles of conflicts
of law). Borrower hereby irrevocably submits to the non-exclusive jurisdiction
of any New York State or Federal court sitting in The City of New York over any
suit, action or proceeding arising out of or relating to this Agreement, and
Borrower hereby agrees and consents that, in addition to any methods of service
of process provided for under applicable law, all service of process in any such
suit, action or proceeding in any New York State or Federal court sitting in The
City of New York may be made by personal service or by certified or registered
mail, return receipt requested, directed to Borrower at the address indicated on
the cover page hereof, and service so made shall be complete five (5) days after
the same shall have been so mailed.
[Remainder of page intentionally left blank.]
14
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written, the execution hereof by
Borrower constituting (a) a certification by the party or parties executing on
its behalf that the representations and warranties made in Article IV are true
and correct as of the date hereof and that each of them duly holds and is
incumbent in the position indicated under his or her name and (b) the
undertaking of said party or parties that each Requisition, whether or not
personally made by any or all of them, shall constitute the personal affirmation
on the part of each of them that at the time thereof said representations and
warranties are true and correct.
WASHINGTON MUTUAL BANK, FA
By: __________________________
Arthur D. Bellini
First Vice President
RD ELMWOOD ASSOCIATES, L.P., a Delaware limited
partnership
By: Acadia Property Holdings, LLC, its general partner
By: Acadia Realty Limited Partnership, its sole member
By: Acadia Realty Trust, a Maryland real estate
investment trust, its general partner
By: __________________________
Robert Masters
Senior Vice President
EXHIBIT A
---------
Authorization Letter
--------------------
November ___, 2002
Washington Mutual Bank, FA
EAB Plaza, 13th Floor
Uniondale, New York 11556-0123
Re: Revolving Loan Agreement, dated as of the date
hereof between you and us (the "Loan Agreement")
------------------------------------------------
Dear Sir/Madam:
In connection with the Loan Agreement, we hereby designate any of the
following persons to give to you instructions, including notices required
pursuant to the Loan Agreement, orally, by telephone or teleprocess, or in
writing:
[_________________________]
Instructions may be honored on the oral, telephonic, teleprocess or
written instructions of anyone purporting to be any one of the above designated
persons even if the instructions are for the benefit of the person delivering
them. Promptly upon request, 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 submit "Requisitions" or
requests for advances under the Loan Agreement with the identical force and
effect in all respects as if executed and submitted by us.
You 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 be liable for
special, consequential or punitive damages. In addition, we agree to hold you
and your 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.
RD ELMWOOD ASSOCIATES, L.P., a Delaware limited
partnership
By: Acadia Property Holdings, LLC, its general partner
By: Acadia Realty Limited Partnership, its sole member
By: Acadia Realty Trust, a Maryland real estate
investment trust, its general partner
By: __________________________
Name:
Title:
EXHIBIT B
---------
Required Contents of Borrower's Counsel Option
----------------------------------------------
(1) The Loan Documents have each been duly authorized, executed and
delivered by the parties thereto (other than Lender) and, under the laws of the
jurisdiction in which the Premises are located (were such laws to apply), are
valid and binding instruments enforceable against such parties in accordance
with their respective terms, except to the extent that such enforcement may be
limited by bankruptcy, insolvency, reorganization and other laws of general
application to the enforcement of creditors' tights.
(1) If Borrower, the mortgagor or grantor under the Mortgage (if
different from Borrower), Guarantor or any general partner of any of them is a
corporation, partnership, venture, limited liability company or trust, each such
entity is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its formation, and has full power and authority to
consummate the transactions contemplated by the Loan Documents and to execute,
deliver and perform all Loan Documents to which it is apply.
(2) There are no actions, suits or proceedings pending or threatened
against or affecting Borrower or Guarantor at law, in equity or before or by any
Governmental Authorities except actions, suits or proceedings which have been
disclosed to Lender in writing and which are fully covered by insurance or
would, if adversely determined, not substantially impair the ability of Borrower
or Guarantor to pay when due any amounts which may become payable under the Note
or Guaranty or to otherwise pay and perform their respective obligations in
connection with the Loan; neither Borrower nor Guarantor is in default with
respect to any order, writ, injunction, decree or demand of any court or
Governmental Authorities.
(3) The consummation of the transactions contemplated by and the
performance of the Loan Documents have not resulted and will not result in any
breach of, or constitute a default under, any mortgage, deed of trust, lease,
bank loan or credit agreement, corporate charter, by-laws, partnership agreement
or other instrument to which Borrower or Guarantor is a party or by which either
of them may be bound or affected.
(4) To such other effects as Lender or its counsel may reasonably
require.
EXHIBIT C
---------
Additional Conditions to Initial Advance
----------------------------------------
1. Borrower shall develop and provide to Lender, an Operations and
Maintenance Plan, in form and substance acceptable to Lender, to address the
approximately 4,000 square feet of non-friable asbestos floor tile in the
basement area of the Property, as more particularly described in the Phase I
Environmental Site Assessment report dated October 7, 2002 by Cashin Associates,
P.C.
2. Borrower shall provide executed Tenant Estoppel Certificates, in
form and substance reasonably satisfactory to Lender, from all tenants occupying
4,000 square feet or more at the Property.
3. Borrower shall provide executed Subordination, Non-disturbance and
Attornment Agreements, in form and substance reasonably satisfactory to Lender
(or in such form and substance as may be required by the terms of the tenant's
lease), from the following tenants of the Property:
Kay-Bee Toy & Hobby Shops, Inc.
United Retail Incorporated
Walgreen Eastern Co., Inc.
Pathmark Stores, Inc.
Valley National Bank
Payless ShoeSource, Inc.
Dots, Inc.