REVOLVING LOAN AGREEMENT
REVOLVING LOAN AGREEMENT (the "Agreement"), made as of this 24th day of
November, 2003, by and between T-TWO PARTNERS, L.P., a Delaware limited
partnership (the "Lender"), and THE NEWKIRK MASTER LIMITED PARTNERSHIP
("Borrower").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Omnibus Agreement, Termination of
Put-Call Option Agreement; Loan Commitment and Agreement to Guaranty (the
"Omnibus Agreement"), the Lender has agreed to provide Borrower with the ability
to borrow sums from the Lender in the form of a revolving credit loan facility;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings (all terms defined in this Article I or other provisions in the
singular shall have the same meanings when used in the plural and vice versa):
"Credit Period" - shall mean the time period between the date hereof
and the earlier to occur of (i) the date that is six months prior to the
Maturity Date or (ii) the date on which all of the obligations of the Lender
under the Fleet Loan have been satisfied.
"Fleet Loan" - that certain loan being made pursuant to the Fleet Loan
Agreement.
"Fleet Loan Agreement" - that certain Master Loan Agreement, dated of
even date herewith among Borrower, Lender, Fleet National Bank, as Agent, and
certain other lenders identified therein.
"Interest Period" - means, each one (1) consecutive month period during
the term of each Loan. Each such Interest Period shall commence on the last day
of the expiring Interest Period and ending one month thereafter; provided,
however: (i) if there is no such numerically corresponding day, such Interest
Period shall end on the last Business Day of the applicable month, (ii) if the
last day of such an Interest Period would otherwise occur on a day which is not
a Business Day, such Interest Period shall be extended to the next succeeding
Business Day; but (iii) if such extension would otherwise cause such last day to
occur in a
new calendar month, then such last day shall occur on the next preceding
Business Day.
"Interest Rate" - LIBOR plus 450 basis points.
"Loan Documents" - This Agreement, the Note and all other documents
entered into in connection herewith or therewith.
"LIBO Rate" - with respect to any Interest Period, the rate per annum
as determined on the basis of the offered rates for deposits in Dollars, for a
30 day period which appears on the "Telerate Page 3750" as of 11:00 a.m. London
time on the day that is two (2) London Banking Days preceding such Interest
Period; provided, however, if the rate described above does not appear on the
Telerate System on any applicable interest determination date, the LIBO Rate
shall be the rate (rounded upward, if necessary, to the nearest one
hundred-thousandth of a percentage point), determined on the basis of the
offered rates for deposits in Dollars for a period of time comparable to the
Interest Period which are offered by four major banks in the London interbank
market at approximately 11:00 a.m. London time, on the day that is two (2)
London Banking Days preceding the first day of such Interest Period as selected
by Lender. The principal London office of each of the four major London banks
will be requested to provide a quotation of its Dollar deposit offered rate as
described in the preceding sentence. If at least two (2) such quotations are
provided, the rate for that date will be the arithmetic mean of the quotations.
If fewer than two (2) quotations are provided as requested, the rate for that
date will be determined on the basis of the rates quoted for loans in Dollars to
leading European banks for a period of time comparable to such Interest Period
offered by major banks in New York City at approximately 11:00 a.m. New York
City time, on the day that is two (2) London Banking Days preceding the first
day of the Interest Period.
"Maturity Date" - The maturity date of the Fleet Loan, as the same may
be extended from time to time, but in no event later than the fifth anniversary
of the date hereof.
"Maximum Revolving Facility" - An amount equal to the difference, if
any, between (i) all payments made on account of the Contract Receivables (as
defined in the Omnibus Agreement) and (ii) the sum of (w) the principal and
amortization actually paid by the Lender under the Fleet Loan Agreement, (x) the
projected principal payments required to be made by the Lender under the Fleet
Loan Agreement (assuming an annual principal payment equal to at least the
minimum annual principal payment required to be made under the Fleet Loan
Agreement) for the succeeding 12 month period, (y) to the extent deemed
advisable by
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the Lender, the projected interest payments required to be made by the Lender
under the Fleet Loan Agreement for a period not to exceed the succeeding 12
month period, and (z) such reserves as the Lender deems are reasonably necessary
in its good faith judgment to enable it to satisfy its debt obligations and
operating expenses.
"Note" - as defined in Section 2.6.
"Obligations" - all of the indebtedness, liabilities and obligations of
the Borrower to the Lender, whether now existing or hereafter arising, whether
or not currently contemplated, direct or indirect, joint or several, certain or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising out of or
incurred under this Agreement or the Note, including, without limitation,
Revolving Credit Loans, and including in every case interest thereon and all
other amounts payable in respect thereof pursuant to this Agreement.
"Omnibus Agreement" - as defined in the Recitals.
"Organizational Documents" - As applicable, the Certificate of Limited
Partnership, Certificate of Incorporation, Certificate of Formation, Agreement
of Limited Partnership, By-laws and Limited Liability Company Agreement.
"Person" - An individual, trust, estate, partnership, joint venture,
association, company, corporation, limited liability company or other entity.
"Revolving Credit Loan" - as defined in Section 2.1.
ARTICLE II
LOANS
Section 2.1 Revolving Credit Loans. (a) The Lender hereby agrees, on
the terms and subject to the conditions of this Agreement, to make revolving
credit loans (each a "Revolving Credit Loan" and collectively, the "Revolving
Credit Loans") during the Credit Period to the Borrower in an aggregate
principal amount at any one time outstanding not to exceed the then Maximum
Revolving Facility.
(b) On the terms and subject to the conditions of this Agreement,
and within the limits set forth in paragraph (a) above, during the Credit Period
the Borrower may borrow, repay and reborrow Revolving Credit Loans.
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Section 2.2 Notices. At such time as the Borrower shall determine that
it desires to make a borrowing hereunder, the Borrower shall give the Lender
written notice of each borrowing of each Revolving Credit Loan (a "Borrowing
Notice") substantially in the form of Exhibit A hereto. Each Borrowing Notice
shall specify the amount to be borrowed.
Section 2.3 Disbursement of Loan Proceeds. So long as (i) the amount to
be borrowed under the Borrowing Notice does not cause the aggregate principal
amount of Revolving Credit Loans outstanding at such time to exceed the Maximum
Revolving Facility, and (ii) no Event of Default (as hereinafter defined) has
occurred and is continuing, the Lender will make available to the Borrower the
principal amount of the borrowing in immediately available funds and shall be
payable to such account as shall be specified by the Borrower in its Borrowing
Notice. All advances of Revolving Credit Loans shall be made on the first
business day of a month. All Revolving Credit Loans to be made pursuant to a
Borrowing Notice received prior to the 25th day of a month shall be made, to the
extent the Lender is required to make such Revolving Credit Loan, on the first
day of the month following the receipt of such Borrowing Notice. All Revolving
Credit Loans to be made pursuant to a Borrowing Notice received on or after the
25th day of a month shall be made, to the extent the Lender is required to make
such Revolving Credit Loan, on the first day of the second month following the
receipt of such Borrowing Notice.
Section 2.4 Interest. (a) The Borrower shall pay to the Lender with
respect to the Revolving Credit Loans interest (on the basis of a 360-day year
and actual days elapsed) on the unpaid principal amount of such Revolving Credit
Loans for the period commencing on the date such Revolving Credit Loan is
borrowed until such Revolving Credit Loan shall be paid in full, at a rate per
annum equal to the Interest Rate.
(b) Anything in this Agreement or the Note to the contrary
notwithstanding, the obligation of the Borrower to make payments of interest
shall be subject to the limitation that payments of interest shall not be
required to be made to the Lender to the extent that the Lender's receipt
thereof would not be permissible under the law or laws applicable to the Lender
limiting rates of interest which may be charged or collected by the Lender. Any
such payments of interest which are not made as a result of the limitation
referred to in the preceding sentence shall be made by the Borrower to the
Lender on the earliest interest payment date or dates on which the receipt
thereof would be permissible under the laws applicable to the Lender limiting
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rates of interest which may be charged or collected by the Lender. Such deferred
interest shall not bear interest.
Section 2.5 Payment of Revolving Credit Loans. (a) Borrower shall be
required to make payments of interest on the Revolving Credit Loans on a monthly
basis on the first day of each month. Borrower shall not be required to make any
payments of principal on the Revolving Credit Loans until the Maturity Date.
(b) Borrower may, upon prior written notice to the Lender, prepay
the Revolving Credit Loans on the first of any month, in whole or in part,
without premium or penalty, in integral multiples of $1,000, by paying such
principal amount to be prepaid together with accrued and unpaid interest thereon
to the date of prepayment.
(c) The principal balance of the Note, and all accrued interest
thereon, shall be due and payable on the Maturity Date.
Section 2.6 Note. (a) The Revolving Credit Loans made by the Lender
shall be evidenced by a promissory note made by the Borrower in substantially
the form of Exhibit B annexed hereto (the "Note"). The Note shall be dated as of
the date hereof, shall be payable to the order of the Lender in a principal
amount equal to the amount actually borrowed hereunder and shall otherwise be
duly completed.
(b) The Lender is authorized to enter on the schedule attached to
the Note a notation with respect to each Revolving Credit Loan made hereunder
setting forth: (i) the date and principal amount thereof, and (ii) each payment
and prepayment of principal thereof. Such notations shall be presumed correct,
absent manifest error. The failure of the Lender to make a notation on a
schedule to the Note as aforesaid shall not affect the Obligations hereunder or
under the Note in any respect.
Section 2.7 Use of Proceeds of Loans. The proceeds of the Loans
hereunder may be used for any purpose deemed advisable by the Borrower.
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ARTICLE III
REPRESENTATION, WARRANTIES AND COVENANTS
Section 3.1 Representations and Warranties. Borrower warrants and
represents to the Lender for the express purpose of inducing Lender to enter
into this Agreement, to make the Revolving Credit Loans, and to otherwise
complete all of the transactions contemplated hereby that as of the date hereof,
and at all times thereafter until the Revolving Credit Loans have been repaid
and all Obligations have been satisfied as follows:
(a) Formation. The Borrower has been duly formed and is validly
existing and in good standing as a limited partnership under the laws of the
State of Delaware. The Borrower has the requisite partnership power and
authority to own its assets and conduct its businesses and to enter into and
perform its obligations hereunder each Loan Document to which it is a party. The
Borrower is in good standing and authorized to do business in each jurisdiction
where the ownership of its assets and/or the conduct of its business requires
such qualification except where the failure to be so qualified would not have a
material adverse effect on the business of the Borrower.
(b) Proceedings; Enforceability. The Borrower has taken all
requisite partnership action to authorize the execution, delivery and
performance by the Borrower of the Loan Documents to which it is a party. Each
Loan Document to which it is a party which is required to be executed and
delivered on or prior to the date on which this representation and warranty is
being made has been duly authorized, executed and delivered and constitutes the
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its respective terms except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency and
similar laws affecting rights of creditors generally and to general principles
of equity (regardless of whether enforcement is sought in a proceeding in equity
or at law).
(c) Conflicts. Neither the execution, delivery and performance of
the Loan Documents by the Borrower or compliance by the Borrower with the terms
and provisions thereof, (i) will contravene any provision of any law, statute,
rule or regulation or any order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict with or result in any breach of
any of the terms, covenants, conditions of, or constitute a default under, or
result in the creation or imposition (or the obligation to create or impose) of
any Lien (except pursuant to the Security Agreement) upon any of the property or
assets of the Borrower pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement or loan
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agreement or any other agreement, contract or instrument to which the Borrower
is a party or by which it or any of its properties or assets is bound or to
which it may be subject or (iii) will violate any provision of any of the
Organizational Documents of the Borrower.
(d) Litigation. Except for that certain lawsuit captioned Albert
McCall, et. al. v. Newkirk Capital, LLC, et. al, in the Connecticut Superior
Court, there are no actions, suits or proceedings at law or in equity or by or
before any governmental instrumentality or other agency or regulatory authority
by any entity (private or governmental) pending or, to the best of Borrower's
knowledge, threatened with respect to the Revolving Credit Loans, the
transactions contemplated in the Loan Documents or any documentation executed in
connection therewith, or the Borrower which could reasonably be expected to have
a material adverse effect on the business of the Borrower.
(e) Taxes. The Borrower has made all required tax filings and has
paid all federal, state and local taxes applicable to the Borrower and the
Borrower's assets.
(f) Control Provisions. There are no provisions in the Borrower's
Organizational Documents, or any other agreement or instrument to which the
Borrower is party, under which any Person (other than the Borrower) has the
right to exercise the management or control rights, powers or authority
currently belonging to the Borrower.
(g) Bankruptcy Filings. The Borrower is not contemplating either a
filing of a petition under any state or federal bankruptcy or insolvency laws or
the liquidation of all or a major portion of its assets or property, and the
Borrower has no knowledge of any Person contemplating the filing of any such
petition against the Borrower.
(h) Investment Company. The Borrower is not an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
(i) Holding Company. The Borrower is not a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company," within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
(j) No Default. There is no Event of Default on the part of
Borrower under this Agreement or any of the other Loan
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Documents and no event has occurred and is continuing which would constitute an
Event of Default under any Loan Document.
Section 3.2 Covenants. The Borrower covenants and agrees as follows:
(a) Books and Records. The Borrower shall keep and maintain proper
and accurate books, records and accounts reflecting all of the financial affairs
of the Borrower and all items of income and expense in connection with its
business and operations and in connection with any services, equipment or
furnishings provided in connection with the operation of the business of the
Borrower, whether such income or expense is realized thereby or by any other
Person.
(b) Tax Returns. The Borrower shall cause all tax returns required
to be filed by it to be filed on a timely basis and any taxes due on account
thereof to be paid on a timely basis.
(c) Organizational Documents. Except with the prior written
consent of the Lender, the Borrower shall not permit to be modified, amended,
supplemented or terminated in any material respect, its Organizational
Documents, or any of them.
(d) Legal Existence. The Borrower will do or cause to be done all
things necessary to preserve and keep in full force and effect its legal
existence, rights and franchises.
(e) Insurance. The Borrower will maintain with financially sound
and reputable insurers insurance with respect to its properties and business
against such casualties and contingencies as shall be in accordance with the
general practices of businesses engaged in similar activities in similar
geographic areas and in amounts, containing such terms, in such forms and for
such periods as may be reasonable and prudent.
(f) Compliance with Laws. The Borrower will comply with (a) the
applicable laws and regulations wherever its business is conducted, (b) the
provisions of its Organizational Documents, (c) all agreements and instruments
by which it or any of its properties may be bound, and (d) all applicable
decrees, orders, and judgments. If any authorization, consent, approval, permit
or license from any officer, agency or instrumentality of any government shall
become necessary or required in order that the Borrower may fulfill any of its
obligations hereunder or any of the other Loan Documents to which the Borrower
is a party, the Borrower will promptly take or cause to be taken all reasonable
steps within the power of the Borrower to obtain such
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authorization, consent, approval, permit or license and furnish the Lender with
evidence thereof.
(g) Indemnification. Borrowers shall at all times, both before and
after repayment of the Revolving Credit Loan, at its sole cost and expense
defend, indemnify, exonerate and save harmless Lender and all those claiming by,
through or under Lender ("Indemnified Party") (to the extent not paid by
Borrowers in this Section 3.2(g) or under the applicable provisions of this or
any other Loan Document) against and from all damages, losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses of any kind whatsoever, including,
without limitation, attorneys' fees and experts' fees and disbursements, which
may at any time (including, without limitation, before or after discharge or
foreclosure of the Security Agreement) be imposed upon, incurred by or asserted
or awarded against the Indemnified Party and arising from or out of:
(i) any liability for damage to person or property arising
out of any violation of any legal requirement with respect to the Borrower,
(ii) as a result of litigation that may arise in connection
with the Borrower's activities, or
(iii) any and all liabilities, damages, penalties, costs, and
expenses, relating in any manner to any brokerage or finder's fees in
respect of the Revolving Credit Loan.
Notwithstanding the foregoing, an Indemnified Party shall not be
entitled to indemnification in respect of claims arising from acts of its own
gross negligence or willful misconduct to the extent that such gross negligence
or willful misconduct is determined by the final judgment of a court of
competent jurisdiction, not subject to further appeal, in proceedings to which
such Indemnified Party is a proper party.
(h) Costs and Expenses. Borrower shall pay all costs and expenses
(excluding salaries or wages of employees of Lender) reasonably incurred by
Lender in connection with the implementation of the Revolving Credit Loans and
the administration of the Revolving Credit Loans, and reasonably incurred by the
Lender in connection with the enforcement of the Lender's rights under the Loan
Documents, including, without limitation, legal fees and disbursements, and
out-of-pocket costs of consultants. Borrowers' obligations to pay such costs and
expenses shall include, without limitation, all attorneys' fees and other costs
and expenses for preparing and conducting litigation or dispute resolution
arising from any breach by
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Borrower of any covenant, warranty, representation or agreement under any one or
more of the Loan Documents. Unless an Event of Default has occurred and is then
continuing, the Lender shall use its good faith efforts to notify the Borrower
prior to the incurrence of any such cost or expense if the aggregate amount of
such costs and expenses in any one calendar year will exceed $25,000.00;
provided, however, that the failure to provide such notice shall not affect in
any manner whatsoever on the Borrowers' obligations hereunder
3.2.9 Further Assurances. The Borrower will cooperate with the Lender
and execute such further instruments and documents as the Lender shall
reasonably request to carry out to their satisfaction the transactions
contemplated by this Agreement and the other Loan Documents.
ARTICLE IV
[INTENTIONALLY OMITTED]
ARTICLE V
EVENTS OF DEFAULT
Section 5.1 Default. If any one or more of the following events
("Events of Default") shall occur and be continuing with respect to the
Borrower, the Lender's obligation to make Revolving Credit Loans shall terminate
and the entire unpaid balance of principal of and interest on the Note
outstanding shall immediately become due and payable upon written notice to that
effect given to the Borrower by the Lender (except that in the case of the
occurrence of any Event of Default described in subparagraph (d) hereof, no such
notice shall be required), without presentment or demand for payment, notice of
non-payment, protest or further notice or demand of any kind, all of which are
expressly waived by the Borrower:
(a) Payments. Failure by the Borrower to make any payment of
principal or interest upon the Note, and such failure shall continue for a
period of more than five (5) days after written notice thereof shall have been
given to the Borrower by the Lender; or
(b) Covenants. Failure by a Borrower to perform or observe any of
the covenants or agreements contained in Section 3.2 hereof; or
(c) Representations and Warranties. Any representation or warranty
made by the Borrower to the Lender
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hereunder or in connection with the making of the Revolving Credit Loans shall
have been false or misleading in any material respect when made or delivered; or
(d) Bankruptcy. The Borrower shall make an assignment for the
benefit of creditors, file a petition in bankruptcy, be adjudicated insolvent,
petition or apply to any tribunal for the appointment of a receiver, custodian,
or any trustee for it or a substantial part of his assets, or shall commence any
proceeding under any bankruptcy, arrangement, readjustment of debt, dissolution
or liquidation law or statute of any jurisdiction, whether now or hereafter in
effect, or the Borrower shall take any action to authorize any of the foregoing
actions; or there shall have been filed any such petition or application, or any
such proceeding shall have been commenced against him, which remains undismissed
for a period of thirty (30) days or more; or any order for relief shall be
entered in any such proceeding; or the Borrower by any act or omission shall
indicate his consent to, approval of or acquiescence in any such petition,
application or proceeding or the appointment of a custodian, receiver or any
trustee for him or any substantial part of any of his properties, or shall
suffer any custodianship, receivership or trusteeship to continue undischarged
for a period of thirty (30) days or more; or
(e) Other Loan Defaults. The Borrower shall be in default under
the Fleet Loan Agreement.
Section 5.2 Remedies. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Lender shall have
accelerated the maturity of the Revolving Credit Loans, the Lender, if owed any
amount with respect to the Revolving Credit Loan, may proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Loan Agreement and the other documents entered into in
connection herewith or any instrument pursuant to which the Obligations to the
Lender are evidenced, including as permitted by applicable law the obtaining of
the ex parte appointment of a receiver, and, if such amount shall have become
due, by declaration or otherwise, proceed to enforce the payment thereof or any
other legal or equitable right of the Lender. No remedy herein conferred upon
the Lender is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of law.
Section 5.3 Remedies of the Essence. The various rights and remedies of
the Lender under this Agreement are of the essence
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of the Agreement, and the Lender shall be entitled to obtain a decree requiring
specific performance of each such right and remedy.
Section 5.4 Recourse. The Revolving Credit Loans shall be fully
recourse to the Borrower and all of its assets but shall not be recourse to the
Borrower's partners.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notices. Any notices, elections or demands permitted or
required to be made under this Agreement shall be in writing, signed by the
party giving such notice, election or demand and shall be deemed to have been
given (i) when personally delivered with signed delivery receipt obtained or
(ii) three business days after such notice has been deposited in the United
States first class mail if sent postage prepaid by registered or certified mail,
return receipt requested, and addressed as follows: (i) if to Lender, to it at 7
Bulfinch Place, Suite 500, P.O. Box 9507, Boston, Massachusetts 02114, Attn:
Carolyn Tiffany; or (ii) if to a Borrower, to it at 7 Bulfinch Place, Suite 500,
P.O. Box 9507, Boston, Massachusetts 02114, Attn: Thomas Staples, as the same
may be modified by giving written notice in accordance with the provisions of
this Section 6.1.
Section 6.2 Lender's Right to Perform on a Borrower's Behalf. If the
Borrower shall fail to observe or perform any of the terms, conditions,
covenants and agreements to be observed or performed by him hereunder or under
the Note, the Lender may (but shall not be obligated to) do the same or cause it
to be done or performed or observed, either in its name or in the name and on
behalf of the Borrower, and the Borrower hereby authorizes the Lender so to do.
Section 6.3 Lender's Right to Use Agents and to Act in Name of
Borrower. The Lender may exercise its rights and remedies hereunder or under the
Note through an agent or other designee and, in the exercise thereof, the Lender
or any such other Person may act in its own name or in the name and on behalf of
the Borrower.
Section 6.4 Power of Attorney. (a) In addition to the other powers
granted the Lender by the Borrowers hereunder, the Borrower hereby appoints the
Lender, and any other Person that the Lender may designate, as the Borrower's
attorney-in-fact to act, in the name, place and stead of the Borrower in any way
in which the Borrower himself could do, with respect to each of the following:
(i) endorsing the Borrower's name on (A) any checks, notes, acceptances, money
orders, drafts or other forms of payment
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and (B) notices of assignment, financing statements and other public records;
(ii) taking any actions or exercising any rights, powers or privileges that the
Borrower is entitled to take or exercise and that, under the terms of this
Agreement or the Note, the Lender is authorized to take or exercise; and (iii)
doing or causing to be done any or all things necessary or, in the determination
of the Lender, desirable to observe or perform the terms, conditions, covenants
and agreements to be observed or performed by the Borrowers hereunder or under
the Note and otherwise to carry out the provisions of this Agreement and the
Note; provided, however, that the Lender will not exercise any of the
above-referenced rights other than to the extent necessary to maintain the
priority and perfection of the security interest granted hereunder prior to an
Event of Default. The Borrower hereby ratifies and approves all acts of the
attorney.
(b) To induce any third party to act under this Section 6.4, the
Borrower hereby agrees that any third party receiving a duly executed copy or
facsimile of this Agreement may act under this Section 6.4, and that the
termination of this Section 6.4 shall be ineffective as to such third Person
unless and until actual notice or knowledge of such termination shall have been
received by such third party, and the Borrower, on behalf of himself and his
successors and assigns, hereby agrees to indemnify and hold harmless any such
third party from and against any and all claims that may arise against such
third party by reason of such third Person having relied on the provisions of
this Section 6.4.
Section 6.5 Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the Commonwealth of Massachusetts.
Section 6.6 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 were upon the same instrument.
Section 6.7 Entire Agreement.This Agreement embodies the entire
agreement among the Borrowers and the Lender relating to the subject matter
hereof and supersedes all prior agreements, representations and understandings,
if any, relating to the subject matter hereof.
Section 6.8 Successors and Assigns. All of the provisions of this
Agreement shall be binding and inure to the benefit of the Borrower and the
Lender and their respective successors and assigns; provided, however, that the
Borrower is not permitted to make any assignment except with the prior written
consent of Lender.
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Section 6.9 Captions. Captions to Articles, Sections and subsections
of, and Schedules and Exhibits to, this Agreement are included for convenience
of reference only and shall not constitute a part of this Agreement for any
other purpose or in any way affect the meaning or construction of any provision
of this Agreement.
Section 6.10 Pronouns and Gender. All pronouns and variations thereof
used herein shall, regardless of the pronoun actually used, be deemed to refer
to the masculine, feminine, neuter, singular or plural as the identity of the
person or persons may, in the context in which such pronoun is used, require.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first set forth above.
THE NEWKIRK MASTER LIMITED PARTNERSHIP
By: MLP GP LLC,
its general partner
By: Newkirk MLP Corp.,
its manager
By:
----------------------------------
Peter Braverman
Executive Vice President
T-TWO PARTNERS, L.P.
By: Holdings Subsidiary LLC,
its general partner
By: Newkirk Manager Corp.,
its manager
By:
-------------------------------
Peter Braverman
Executive Vice President
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Exhibit A
FORM OF BORROWING NOTICE
______________, 200__
T-Two Partners, L.P.
7 Bulfinch Place, Suite 500
P.O. Box 9507
Boston, Massachusetts 02114
This Borrowing Notice is delivered to you under Section 2.2 of the
Revolving Loan Agreement, dated as of November __, 2003 (as such Revolving Loan
Agreement may be amended, modified or supplemented, the "Loan Agreement"),
between T-Two Partners, L.P. (the "Lender") and The Newkirk Master Limited
Partnership (the "Borrower").
Unless otherwise defined herein, capitalized terms used herein have the
meanings ascribed thereto in the Loan Agreement.
The Borrower hereby requests that Revolving Credit Loans be made to it
in the aggregate principal amount of $__________ on __________________, ____.
The principal amount of the Revolving Credit Loans currently outstanding to the
Borrower is $___________. The Revolving Credit Loans requested to be made hereby
shall be in the principal amount of $_____________. Please transfer the proceeds
of the Revolving Credit Loans into the following account of the Borrower:
The undersigned hereby represents and warrants that:
(i) There exists no Event of Default under the Loan Agreement as
to any of the Revolving Credit Loans as of the date hereof, and no Event of
Default will exist after giving effect to the action intended to be taken by the
Borrower as described herein;
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(ii) The Borrower has complied, and as of the date hereof is in
compliance, with all the terms, covenants and conditions of the Loan Agreement
and the Note;
(iii) The representations and warranties of the Borrower contained
in the Loan Agreement are true and correct as to the Borrower as of the date
hereof with the same effect as if such representations and warranties had been
made on the date hereof.
IN WITNESS WHEREOF, the Borrower has authorized this request to be
executed and delivered, as of this _________ day of ________, 200_.
THE NEWKIRK MASTER LIMITED PARTNERSHIP
By: MLP GP LLC,
its general partner
By: Newkirk MLP Corp.,
its manager
By:
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Exhibit B
REVOLVING PROMISSORY NOTE
Boston, Massachusetts
November __, 2003
FOR VALUE RECEIVED, THE NEWKIRK MASTER LIMTIED PARTNERSHIP, a Delaware
limited partnership (the "Borrower"), hereby promise to pay to the order of
T-TWO PARTNERS, L.P., a Delaware limited partnership (the "Lender"), the
aggregate unpaid principal amount of the Revolving Credit Loans (the "Loans")
made by the Lender to the Borrower pursuant to the Revolving Loan Agreement, of
even date herewith among the Lender and the Borrower (such Revolving Loan
Agreement, as amended, modified or supplemented from time to time, being
referred to as the "Loan Agreement"), together with interest thereon at the
Interest Rate at such time and times as set forth in the Loan Agreement.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Loan Agreement.
Anything in the Loan Agreement or herein to the contrary
notwithstanding, the obligations of the Borrower to make payments of interest
shall be subject to the limitation that payments of interest shall not be
required to be made to the Lender to the extent that the Lender's receipt
thereof would not be permissible under the law or laws applicable to the Lender
limiting rates of interest which may be charged or collected by the Lender. Any
such payments of interest which are not made as a result of the limitation
referred to in the preceding sentence shall be made by the Borrower on the
earliest interest payment date or dates on which the receipt thereof would be
permissible under the laws applicable to the Lender limiting rates of interest
which may be charged or collected by the Lender. Such deferred interest shall
not bear interest.
Payment of both principal and interest on this Note are to be made at
the office of the Lender at 7 Bulfinch Place, Suite 500, P.O. Box 9507, Boston,
Massachusetts 02114, or such other place as the Lender shall designate to the
Borrowers in writing, in lawful money of the United States of America in
immediately available funds.
This Note is the Note referred to in Section 2.6 of the Loan Agreement.
This Note is secured in the manner provided for in the Loan Agreement, is
subject to the terms and conditions thereof and is entitled to the benefits
thereof.
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The Lender is authorized to enter on the schedules attached hereto a
notation with respect to each Loan made under the Loan Agreement setting forth:
(i) the date and principal amount thereof and (ii) each payment and prepayment
of principal thereof. Such notations shall be presumed correct, absent manifest
error. The failure by the Lender to make a notation on the schedule hereto as
aforesaid shall not affect the obligations of the Borrower hereunder or under
the Loan Agreement in any respect.
The Borrower expressly waives presentment for payment, demand for
payment, notice of dishonor, protest, notice of protest, notice of nonpayment,
and all lack of diligence or delays in collection or enforcement of this Note,
but such waiver shall not waive the notices provided for in the Loan Agreement.
Upon the occurrence of any Event of Default, the principal amount of
and accrued interest on this Note attributable to the Defaulting Borrower may be
declared due and payable in the manner and with the effect provided in the Loan
Agreement.
The Borrower agrees to pay costs and expenses of collection, including,
without limitation, attorneys' fees and disbursements in the event that any
action, suit or proceeding is brought by the holder hereof to collect this Note.
This Note shall be governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Massachusetts applicable to
contracts entered into and to be performed entirely within such Commonwealth.
This Note may not be changed, modified or terminated orally.
IN WITNESS WHEREOF, the undersigned have executed this Note as of the
day and year first above written.
THE NEWKIRK MASTER LIMITED PARTNERSHIP
By: MLP GP LLC,
its general partner
By: Newkirk MLP Corp.,
its manager
By:
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SCHEDULE 1
TO NOTE
This Note evidences the Loans made under the Loan Agreement in the
principal amounts, and on the dates set forth below, subject to the payments or
prepayments of principal set forth below:
Principal Principal Date of
Amount Amount Paid Payment or Balance
Date Made of Loan or Prepaid Prepayment Outstanding Initials
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