<PAGE>
EX. 10.50
================================================================================
REVOLVING LOAN AGREEMENT
dated as of May 26, 2005
between
FLEET NATIONAL BANK, a Bank of America company,
as a Lender and Arranger
("Lender"),
THE BANK OF CHINA, NEW YORK BRANCH, as a Lender,
FLEET NATIONAL BANK, a Bank of America company,
as Administrative Agent
("Administrative Agent")
and
RD ABSECON ASSOCIATES, L.P. ("RD Absecon"),
RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP ("RD
Bloomfield"),
RD HOBSON ASSOCIATES, L.P. ("RD Hobson"),
RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP ("RD Village"),
and
RD WOONSOCKET ASSOCIATES LIMITED PARTNERSHIP ("RD Woonsocket"),
as Borrowers
(RD
Absecon, RD Bloomfield, RD Hobson, RD Village and RD
Woonsocket,
individually and collectively, as the context requires,
"Borrower")
================================================================================
<PAGE>
THIS REVOLVING LOAN AGREEMENT ("this Agreement") dated as of May
___,
2005 by and among RD ABSECON ASSOCIATES, L.P., a Delaware limited
partnership
("RD Absecon"), RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, a
Delaware
limited partnership ("RD Bloomfield"), RD HOBSON ASSOCIATES, L.P.,
a Delaware
limited partnership ("RD Hobson"), RD VILLAGE ASSOCIATES LIMITED
PARTNERSHIP, a
Delaware limited partnership ("RD Village") and RD WOONSOCKET
ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership ("RD Woonsocket"; RD
Absecon, RD
Bloomfield, RD Hobson, RD Village and RD Woonsocket, collectively
and
individually, as the context requires, "Borrower") and FLEET
NATIONAL BANK, a
Bank of America company (in its individual capacity and not as
Administrative
Agent, "Fleet"), THE BANK OF CHINA, NEW YORK BRANCH ("Bank of
China"; Fleet,
Bank of China and each other lender who may become a Lender
pursuant to Section
8.07, each, a "Lender" and collectively, "Lenders") and FLEET
NATIONAL BANK, a
Bank of America company, as Administrative Agent for Lenders
(together with its
successors in such capacity, "Administrative Agent").
Borrower desires that Lenders extend credit as provided herein,
and
Lenders are prepared to extend such credit. Accordingly,
Borrower,
Administrative Agent and each Lender agree as follows:
NOW, THEREFORE, in consideration of the mutual promises and
agreements
herein contained, Borrower, Administrative Agent and Lenders hereby
agree as
follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. The following terms, as used in this
Agreement, shall have the following meanings:
"Absecon/NJ Property" -- The fee interest in real property located
at Whitehorse
Pike in Absecon, New Jersey owned by RD Absecon.
"Additional Costs" -- Has the meaning specified in Section
3.01.
"Additional Interest" -- Any and all sums that shall become due and
payable by
Borrower under the Hedging Agreement.
"Additional Advance" -- Has the meaning set forth in Section 4.02
of this
Agreement.
"Administrative Agent" -- Has the meaning specified in the
preamble.
"Administrative Agent's Counsel" -- Schiff Hardin LLP, 623 Fifth
Avenue, 28th
Floor, New York, New York 10022.
<PAGE>
"Administrative Agent's Office" -- Administrative Agent's office
located as set
forth on its signature page hereof, or such other address in the
United
States as Administrative Agent may designate by notice to Borrower
and
Lenders.
"Affiliate" -- With respect to any Person (the "first Person"), any
other Person
(1) which directly or indirectly controls, or is controlled by, or
is
under common control with the first Person or (2) 10% or more of
the
beneficial interest in which is directly or indirectly owned or
held by
the first Person. The term "control" means the possession, directly
or
indirectly, of the power, alone, to direct or cause the direction
of
the management and policies of a Person, whether through the
ownership
of voting securities, by contract, or otherwise.
"Anchors" -- Shall mean, with respect to each Property, (i)
American Stores
Properties, Inc., a wholly owned subsidiary of Albertson's, Inc.
(a/k/a
Acme) and Eckerd
Corporation with respect to the Absecon/NJ Property,
(ii) HomeGoods, Inc., Marshalls of MA, Inc., The TJX Companies,
Inc.
and OfficeMax North America, Inc. (f/k/a OfficeMax, Inc.) with
respect
to the Bloomfield/MI Property, (iii) Bobak Enterprises, with
respect to
the Hobson/IL Property; and (iv) Sears, Roebuck & Co.,
Shaws
Supermarkets, Inc., a wholly-owned subsidiary of Albertson's,
Inc.,
Mark Stevens CVS, Inc. and Concord Buying Group Inc., with respect
to
the Woonsocket/RI Property.
"Applicable Lending Office" -- For each Lender and for the portions
of the
outstanding principal balance under its Note bearing interest at
the
Prime Based Rate or LIBO Based Rate, as applicable, the lending
office
of such Lender (or of an Affiliate of such Lender) designated as
such
on its signature page hereof or in the applicable Assignment
and
Assumption Agreement, or such other office of such Lender (or of
an
Affiliate of such Lender) as such Lender may from time to time
specify
to Administrative Agent and Borrower as the office by the portions
of
the outstanding principal balance under its Note bearing interest
at
the
Prime Based Rate or LIBO Based Rate , as applicable, are to be
made
and maintained.
"Applicable Margin" -- With respect to the Prime Based Rate, 0.45%
per annum;
and with respect to the LIBO Based Rate, 1.30% per annum.
"Assignee" -- Has the meaning specified in Section 8.07.
"Assignment and Assumption Agreement" -- An Assignment and
Assumption Agreement,
substantially in the form of EXHIBIT A, pursuant to which a
Lender
assigns and an Assignee assumes rights and obligations in
accordance
with Section 11.05.
"Authorization Letter" -- The letter in the form of EXHIBIT F.
"Bloomfield/MI Property" -- The fee interest in real property
located at 2257
South Telegraph Road in Bloomfield, Michigan owned by RD
Bloomfield.
2
<PAGE>
"Business Day" -- Any day on which commercial banks are not
authorized or
required to close in New York City; and, whenever such day relates
to a
LIBOR Amount, an Interest Period with respect to a LIBOR Amount,
or
notice with respect to a LIBOR Amount, any such day in which
dealings
in Dollar deposits are also carried out in the London interbank
market
and banks are also open for business in London.
"Code" -- The Internal Revenue Code of 1986.
"Contribution Agreement" -- That certain Subordination and
Contribution
Agreement dated as of the date hereof by and among Administrative
Agent
and Borrowers.
"Counterparty" -- Fleet National Bank, or any of its Affiliates, in
their
capacity as a party to the Hedging Agreement, if any, and its
successors and assigns in such capacity.
"Default" -- Any event or circumstance which, with the giving of
notice or the
passage of
time, or both, would become an Event of Default.
"Default Rate" -- A rate per annum equal to (1) with respect to
Prime Based
Loans, a variable rate 5% above the rate of interest then in
effect
thereon and (2) with respect to LIBOR Loans, a fixed rate 5%
above
rate(s) of interest in effect thereon at the time of Event of
Default
until the end of the then current Interest Period therefor and,
thereafter, a variable rate 5% above the rate of interest for a
Prime
Based Loan.
"Delinquency Amount"; "Delinquency Notice"; "Delinquent Lender" --
Have the
respective meanings specified in Section 7.16.
"DSC Test" -- Has the meaning set forth in Section 2.04 of this
Agreement.
"Dollars" and "$" -- Lawful money of the United States of
America.
"Electing Lender"; "Election Notice"; "Election Period" -- Have the
respective
meanings specified in Section 7.16.
"Eligible Assignee" -- An entity which is (i) a commercial bank
organized under
the Laws of the United States, or any State thereof, and having
(x)
total assets in excess of $1,000,000,000 and (y) a combined capital
and
surplus of at least $250,000,000; (ii) a commercial bank
organized
under the laws of any other country which is a member of the
Organization of Economic Cooperation and Development ("OECD"), or
a
political subdivision of any such country, and having (x) total
assets
in excess of $1,000,000,000 and (y) a combined capital and surplus
of
at least $250,000,000, provided that such bank is acting through
a
branch or agency located in the country in which it is organized
or
another country which is also a member of OECD; (iii) a life
insurance
company organized under the Laws of any State of the United States,
or
organized under the laws of any country and licensed as a life
insurer
by any State within the United States and having admitted assets of
at
least $1,000,000,000; or (iv) a nationally recognized
investment
banking company, or an Affiliate thereof (other than any Person
which
is directly or indirectly an Affiliate of Borrower or Guarantor, or
of
any member or partner of Borrower or Guarantor) organized under
the
Laws of any State of the United States, and licensed or qualified
to
conduct such business under the Laws of any such State and having
(1)
total assets of at least $1,000,000,000 and (2) a net worth of at
least
$250,000,000.
3
<PAGE>
"Employee Benefit Plan" -- Any employee benefit or other plan
established or
maintained, or to which contributions have been made, by Borrower
or
Guarantor.
"ERISA" -- The Employee Retirement Income Security Act of 1974,
including the
rules and regulations promulgated thereunder.
"ERISA Affiliate" -- Any corporation which is a member of the same
controlled
group of corporations (within the meaning of Section 414(b) of
the
Code) as Borrower and/or Guarantor, or any trade or business which
is
under common control (within the meaning of Section 414(c) of the
Code)
with Borrower and/or Guarantor, or any organization which is
required
to be treated as a single employer with Borrower and/or Guarantor
under
Section 414(m) or 414(o) of the Code.
"Event of Default" -- Has the meaning given to such term in the
Mortgage.
"Federal Funds Rate" -- For any day, the rate per annum equal to
the weighted
average of the rates on overnight Federal funds transactions as
published by the Federal Reserve Bank of New York for such day or,
for
any day that is not a banking day in New York City, for the
immediately
preceding banking day.
"Fiscal Year" -- The calendar year or such other annual period as
Borrower and
Administrative Agent may mutually agree upon.
"Financial Statements" -- Statements of the assets, liabilities
(direct or
contingent), income, expenses and cash flow of Borrower and
Guarantor,
prepared in accordance with generally accepted accounting
principles in
the United States as in effect from time to time and
consistently
applied.
"Fronting Fee" -- Has the meaning set forth in Section 8.20 of this
Agreement.
"GAAP" -- Generally accepted accounting principles in the United
States as in
effect from time to time, consistently applied.
"Good Faith Contest" -- The contest of an item if (1) the item is
diligently
contested in good faith, and, if appropriate, by proceedings
timely
instituted, (2) adequate reserves are established with respect to
the
contested item, (3) during the period of such contest, the
enforcement
of any contested item is effectively stayed and (4) the failure to
pay
or comply with the contested item during the period of the contest
is
not likely to (x) result in a Material Adverse Change or (y) have
an
adverse effect on the Mortgaged Property under any Mortgage or any
part
thereof, or on Lenders' interest therein.
4
<PAGE>
"Governmental Approvals" -- Any authorization, consent, approval,
license,
permit, certification, or exemption of, registration or filing with
or
report or notice to, any Governmental Authority.
"Governmental Authorities" -- The United States, the state in which
the Property
is located and any political subdivision, agency, department,
commission, board, bureau or instrumentality of either of them,
including any local authorities, which exercises jurisdiction
over
Borrower, Guarantor, the Property or the Improvements.
"Guarantor" -- Jointly and severally, Acadia Realty Limited
Partnership, a
Delaware limited partnership and any other person(s) or entity(ies)
who
may hereafter become a guarantor of any or all of Borrower's
obligations in respect of the Loan.
"Guaranty" -- The guaranty(ies) of all or part of Borrower's
obligations, to be
executed by Guarantor.
"Hazardous Materials" -- Has the meaning given to such term in the
Mortgage.
"Hedging Agreement" -- Any ISDA Master Agreement or other
documentation with
respect to an interest rate hedging transaction entered into by
and
between any Borrower, as any of the same may be amended, modified
or
supplemented from time to time, including any and all
"confirmations"
under any thereof.
"Hobson/IL Property" -- The fee interest in real property located
at 931 West
75th Street in Naperville, Illinois owned by RD Hobson.
"Improvements" -- Shall mean, with respect to the indicated
Property: (i) a one
story Neighborhood Shopping Center containing 105,093 square feet
with
respect to the Absecon/NJ Property, (ii) a one story Community
Shopping
Center containing 229,506 square feet with respect to the RD
Bloomfield
Property, (iii) a one story Neighborhood Shopping Center
containing
99,042 square feet with respect to the Hobson/IL Property, (iv)
one
story Neighborhood Shopping Center containing 269,921 square feet
with
respect to the Woonsocket/RI Property and (v) a two story,
578,706
n.r.s.f./600 unit apartment community with 1,158 surface parking
spaces
with respect to the Village/NC Property.
"Indemnity" -- An agreement from Borrower and Guarantor or, if
there is no
Guarantor, such other persons or entities as shall be satisfactory
to
Lender, whereby, among other things, Lender is indemnified
regarding
Hazardous Materials.
"Individual Loan Commitment" -- With respect to each Lender, the
amount set
forth below opposite the name of such Lender (subject to change
in
accordance with the terms of this Agreement).
5
<PAGE>
Lender
Individual Loan Commitment
------
---------------------------
Fleet
$32,500,000
Bank of China
$32,500,000
Upon any reduction in the Total Loan Commitment, each Lender's
Individual Loan
Commitment shall reduce by the Lender's Pro Rata Share of the
reduction of the
Total Loan Commitment.
"Insolvency Event" -- Shall mean the occurrence of any of the
Events of Default
described in clauses (d) through (h) of the Mortgage.
"Interest Period" -- The period during which interest at the LIBO
Based Rate,
determined as provided in this Agreement, shall be applicable to
the
LIBO Rate Request Amount in question, provided, however, that each
such
period shall be either one (1), two (2), three (3) months (or,
if
available, four (4), or six (6) months or such other periods as
Administrative Agent may make available from time to time), which
shall
be
measured from the date specified by Borrower in each LIBO Rate
Request for the commencement of the computation of interest at the
LIBO
Based Rate, to the numerically corresponding day in the calendar
month
in which such period terminates (or, if there be no numerical
correspondent in such month, or if the date selected by Borrower
for
such commencement is the last Business Day of a calendar month,
then
the last Business Day of the calendar month in which such
period
terminates, or if the numerically corresponding day is not a
Business
Day then the next succeeding Business Day, unless such next
succeeding
Business Day enters a new calendar month, in which case such
period
shall end on the next preceding Business Day) and in no event shall
any
such period extend beyond the Maturity Date.
"Initial Advance" -- The first advance of Loan proceeds to be made
hereunder.
"Law" -- Any federal, state or local law, statute, rule,
regulation,
ordinance, order, decree, directive, requirement, code, notice
of
violation or rule of common law, now or hereafter in effect, and
in
each case as amended, and any judicial or administrative
interpretation
thereof by a Governmental Authority or otherwise, including any
judicial or administrative order, determination, consent decree
or
judgment.
"Lender"; "Lenders" -- Has the respective meanings specified in the
preamble.
"Lender Reply Period" -- Has the meaning specified in Section
8.06.
"Lenders L/C Fee" -- Has the meaning set forth in Section 8.20 of
this
Agreement.
"Letter of Credit" -- Has the meaning set forth in Section 8.20 of
this
Agreement.
6
<PAGE>
"LIBO Rate" -- The rate per annum (at Administrative Agent's
option, rounded
up, if necessary, to the nearest 1/32 of 1%) that appears on Dow
Jones
Page 3750 at approximately 11:00 a.m. (London time) on the date
(the
"LIBOR Determination Date") two (2) Business Days prior to the
first
day of the applicable Interest Period, for amounts comparable to
the
LIBO Rate Request Amount for the same period of time as the
Interest
Period selected by Borrower in the LIBO Rate Request; or, if such
rate
does not appear on Dow Jones Page 3750 as of approximately 11:00
a.m.
(London time) on the LIBOR Determination Date, the rate (at
Administrative Agent's option, rounded up, if necessary, to the
nearest
1/32 of 1%) for deposits in Dollars for a period comparable to
the
applicable Interest Period that appears on the Reuters Screen LIBO
Page
as of approximately 11:00 a.m. (London time) on the LIBOR
Determination
Date. If such rate does not appear on either Dow Jones Page 3750 or
on
the Reuters Screen LIBO Page as of approximately 11:00 a.m.
(London
time) on the LIBOR Determination Date, the LIBO Rate for the
Interest
Period will be determined on the basis of the offered rates for
deposits in Dollars for an amount comparable to the LIBO Rate
Request
Amount for the same period of time as such Interest Period that
are
offered by four (4) major banks in the London interbank market
at
approximately 11:00 a.m. (London time) on the LIBOR Determination
Date.
Administrative Agent will request that the principal London office
of
each of the four (4) major banks provide a quotation of its
Dollar
deposit offered rate. If at least two (2) such quotations are
provided,
the LIBO Rate will be the arithmetic mean of the quotations. If
fewer
than two (2) quotations are provided as requested, the LIBO Rate
will
be determined on the basis of the rates quoted for loans in Dollars
to
leading European banks for amounts comparable to such LIBO Rate
Request
Amount for the same period of time as such Interest Period offered
by
major banks in New York City at approximately 11:00 a.m. (New
York
time) on the LIBOR Determination Date. In the event that
Administrative
Agent is unable to obtain any such quotation as provided above, it
will
be deemed that the
LIBO Rate cannot be determined. For purposes of the
foregoing definition, "Dow Jones Page 3750" means the display
designated as "Page 3750" on the Dow Jones Markets Service (or
such
other page as may replace Page 3750 on that service or such
other
service as may be nominated by the British Bankers' Association as
the
information vendor for the purpose of displaying British
Bankers'
Association Interest Settlement Rates for Dollar deposits); and
"Reuters Screen LIBO Page" means the display designated as page
"LIBO"
on the Reuters Monitor Money Rates Service (or such other page as
may
replace the LIBO page on that service for the purpose of
displaying
interbank rates from London in Dollars).
"LIBO Rate Request" -- Borrower's telephonic notice (to be promptly
confirmed
in writing), to be received by Administrative Agent by 12 Noon
(New
York time) three (3) Business Days prior to the date specified in
the
LIBO Rate Request for the commencement of the Interest Period
(which
specified date must be a Business Day), of (a) its intention to
have
(i) all or any portion of the Principal Amount which is not then
the
subject of an Interest Period (other than an Interest Period which
is
terminating on the Business Day specified in the notice) and/or
(ii)
all or any portion of any advance of proceeds of the Loan evidenced
by
the Notes which is to be made on the Business Day specified in
the
notice, bear interest at the LIBO Based Rate and (b) the
Interest
Period desired by Borrower in respect of the amount specified.
7
<PAGE>
"LIBO Rate Request Amount" -- The amount, to be specified by
Borrower in each
LIBO Rate Request, which Borrower desires bear interest at the
LIBO
Based Rate and which, at Administrative Agent's option, shall be
an
integral multiple of $100,000.
"LIBOR Loan" -- All or any portion (as the context requires) of any
Lender's
Loan which shall accrue interest at the LIBOR Based Rate.
"Loan" -- The loan in the Loan Amount made by Lender to Borrower
under this
Agreement.
"Loan Allocation" -- Shall mean, with respect to the indicated
Property: (i)
$12,060,000 for the Absecon/NJ Property, (ii) $16,730,000 for
the
Bloomfield/MI Property, (iii) $7,450,000 for the Hobson/IL
Property,
(iv) $17,840,000 for the Woonsocket/RI Property and (v) $10,920,000
for
the Village/NC Property.
"Loan Amount" -- $65,000,000 (subject to change in accordance with
the terms
of this Agreement).
"Loan Documents" -- This Agreement, the Notes, the Mortgages, the
Indemnity,
the Authorization Letter, the Solvency Certificate, the
Contribution
Agreement, Uniform Commercial Code financing statements in respect
of
the Mortgaged Property and any other collateral given to Lender
as
security for the
Loan, and any other documents which evidence or secure
the Loan.
"Loan to Value Test" -- Has the meaning set forth in Section 2.03
of this
Agreement.
"Major Lease" -- Any lease for space in excess of 10,000 square
feet of the
rentable area of the Improvements.
"Material Adverse Change" means either (1) a material adverse
change in the
status of the business, results of operations, financial
condition,
property or prospects of Borrower or (2) any event or occurrence
of
whatever nature which is likely to (x) have a material adverse
effect
on the ability of Borrower to perform its obligations under the
Loan
Documents or (y) create, in the sole and absolute judgment
(reasonably
exercised) of Lender, a material risk of sale or forfeiture of any
of
the Mortgaged Property (other than an immaterial portion thereof)
under
any Mortgage or otherwise materially impair any of the
Mortgaged
Property under any Mortgage or Lenders' rights therein.
"Maturity Date" -- June 1, 2010.
"Mortgage" -- For each Property, the Mortgage (or Deed of Trust),
Assignment of
Leases and Rents and Security Agreement in respect thereof, each
dated
the date hereof, from the respective Mortgagor for the benefit
of
Administrative Agent, as agent for Lenders, to secure the payment
and
performance of Borrower's obligations hereunder, under the Notes
and
otherwise in respect of the Loans.
8
<PAGE>
"Mortgaged Property" means, for each Property, the Property, the
Improvements
thereon and all other property constituting the "Mortgaged
Property",
as said quoted term is defined in the applicable Mortgage.
"Multiemployer Plan" -- A Plan defined as such in Section 3(37) of
ERISA to
which contributions have been made by Borrower or any ERISA
Affiliate
and which is covered by Title IV of ERISA.
"Net Operating Income"
(a) all revenues from the ownership, use, occupancy, leasing
and operation of the Property during the period in question,
determined
in accordance with GAAP (but adjusted to eliminate the effects
of
straight-lining of rents and further adjusted to exclude
extraordinary
and non-recurring sources of income), including all rental and
other
payments, including, without limitation, base rent, additional
rent,
promotional revenues, percentage rent and payments for common
area
maintenance, taxes, insurance and operating expenses and proceeds
of
rental loss or business interruption service, excluding tenant
security
deposits collected but not applied to tenants' obligations, and
interest on such deposits;
minus
(b) all expenses in connection with the Property during such
period, determined in accordance with GAAP, including insurance
premiums, real estate taxes, promotional expenses, maintenance
and
repair expenses, management fees and any other operational
expenses,
all as determined in accordance with GAAP, but not including
debt
service payable under the Loan.
"Non-Delinquent Lender" -- Each Lender other than the Delinquent
Lender(s).
"Non-Excluded Taxes" -- Has the meaning specified in Section
8.14.
"Note"; "Notes" -- Have the respective meanings specified in
Section 2.06.
"Obligations" -- Each and every obligation, covenant and agreement
of Borrower,
now or hereafter existing, contained in this Agreement, and any of
the
other Loan Documents, whether for principal, reimbursement
obligations,
interest, fees, expenses, indemnities or otherwise, and any
amendments
or supplements thereto, extensions or renewals thereof or
replacements
therefor, including, but not limited to, all indebtedness,
obligations
and liabilities of Borrower to Administrative Agent and any Lender
now
existing or hereafter incurred under or arising out of or in
connection
with the Notes, this Agreement, the other Loan Documents, and
any
documents or instruments executed in connection therewith; in each
case
whether direct or indirect, joint or several, absolute or
contingent,
liquidated or unliquidated, now or hereafter existing, renewed
or
restructured, whether or not from time to time decreased or
extinguished and later increased, created or incurred, and
including
all indebtedness of Borrower, under any instrument now or
hereafter
evidencing or securing any of the foregoing.
9
<PAGE>
"Participant"; "Participation" -- Have the respective meanings
specified in
Section 8.07.
"Payor" -- Has the meaning specified in Section 7.12.
"Pension Plan" -- Any employee pension benefit plan within the
meaning of
Section 3(2) of ERISA with respect to which Borrower, Guarantor or
any
ERISA Affiliate at any relevant time has liability or an obligation
to
contribute.
"Person" -- An individual, partnership, corporation, limited
liability company,
business trust, joint stock company, trust, unincorporated
association,
joint venture or other entity of whatever nature.
"Plan" -- Any employee benefit or other plan established or
maintained, or to
which contributions have been made, by Borrower or any ERISA
Affiliate
and which is covered by Title IV of ERISA or to which Section 412
of
the Code applies.
"Premises Documents" -- Has the meaning given to such term in the
Mortgage.
"Prime Based Loan" -- All or any portion (as the context requires)
of a
Lender's Loan which shall accrue interest at a rate determined
in
relation to the Prime Based Rate.
"Prime Based Rate" -- The Applicable Margin plus the greater of (i)
the
Federal Funds Rate plus 1/2 of 1% per annum or (ii) the prime
commercial lending rate as announced from time to time by
Administrative Agent at Administrative Agent's Office (it being
understood that said "prime commercial lending rate" is a
reference
rate and does not necessarily represent the lowest or best rate
being
charged to customers), each change in said rates to be
effective,
without notice or demand of any kind, as of the date of such
change.
"Principal Amount" -- At any time, the aggregate outstanding
principal amount of
the Notes.
"Property" means, individually and collectively, as the context
requires, each
of the Absecon/NJ Property, the Bloomfield/MI Property, the
Hobson/IL
Property, the Village/NC Property and the Woonsocket/RI
Property.
"Pro Rata Share" -- With respect to each Lender, the ratio of such
Lender's
Individual Loan Commitment to the Loan Amount. As of the date
hereof,
the Lenders' respective Pro Rata Shares are as follows:
10
<PAGE>
Lender
Pro Rata Share
------
--------------
Fleet
50%
Bank of China
50%
"Regulation D" and "Regulation U" -- Respectively, Regulation D and
Regulation U
of the Board of Governors of the Federal Reserve System.
"Regulatory Change" -- With respect to any Lender and the charging
and
collecting
of interest at the LIBO Based Rate, any change after the
date hereof in federal, state or foreign laws or regulations
(including
Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of
banks
including such Lender under any federal, state or foreign laws
or
regulations (whether or not having the force of law) by any court
or
governmental or monetary authority charged with the interpretation
or
administration thereof, excluding any change the effect of which
is
reflected in a change in the LIBO Based Rate.
"Release Price" -- Shall mean, with respect to the indicated
Property: (i)
$13,880,000 for the Absecon/NJ Property, (ii) $19,250,000 for
the
Bloomfield/MI Property, (iii) $8,566,000 for the Hobson/IL
Property,
(iv) $12,570,000 for the RD Village Property, and, (v) $20,528,000
for
the RD Woonsocket Property.
"Replacement Lender" -- Has the meaning set forth in Section 7.20
of this
Agreement.
"Required Lenders" -- At any time, those Non-Delinquent Lenders
having Pro Rata
Shares aggregating more than 50%; provided, however, that during
the
existence of an Event of Default, the "Required Lenders" shall be
those
Non-Delinquent Lenders holding at least 66-2/3% of the then
aggregate
unpaid principal amount of the Loans.
"Required Payment" -- Has the meaning specified in Section
7.12.
"Requisition" -- A written statement by or on behalf of Borrower,
in form and
substance satisfactory to Administrative Agent, setting forth
the
amount of the Loan advance requested in each instance and
instructions
for the payment of the same, and certifying the purpose for which
such
advance is to be used.
"Reserve Requirement" -- The rate at which reserves (including any
marginal,
supplemental or emergency reserves) are actually required to be
maintained by any Lender or any Lender's respective Participants,
if
any, under Regulation D against "Euro-Currency Liabilities", as
such
quoted term is used in Regulation D. Without limiting the effect of
the
foregoing, the Reserve Requirement shall reflect any other
reserves
required to be maintained by any Lender or any Lender's
respective
Participants, if any, by reason of any Regulatory Change against
(i)
any category of liabilities which includes deposits by reference
to
which the LIBO Based Rate is to be determined as provided in
this
Agreement or (ii) any category of extensions of credit or other
assets
which includes loans the interest rate on which is determined on
the
basis of rates used in determining the LIBO Rate.
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"Solvency Certificate" -- A certificate in the form of EXHIBIT G
executed by
each of the Borrowers.
"Solvent" -- When used with respect to any Person, that the fair
value of the
property of such Person, on a going concern basis, is greater than
the
total amount of liabilities (including, without limitation,
contingent
liabilities) of such Person.
"Title Insurer" -- The issuer(s), approved by Administrative Agent,
of the
title insurance policy or policies insuring the Mortgage. "Total
Loan
Commitment" -- An amount equal to the aggregate amount of all
Individual Loan Commitments.
"Treasury Rate" -- The yield rate (i) on the 10 year U.S. Treasury
Security due
on or closest to the Maturity Date (as defined in the Note), as
such
yield rate is reported in the Wall Street Journal on the second
Business Day preceding the date of calculation.
"Unrestricted Cash and Cash Equivalents" means the following assets
of Guarantor
(and Guarantor's pro rata share thereof with respect to
unconsolidated
joint ventures in which Guarantor has the power and authority to
cause
distributions from such joint venture), in each case, not subject
to
any lien, security interest or restriction: (i) cash, (ii)
securities
issued or directly and fully guaranteed or insured by the United
States
of America or any
agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged
in
support thereof) having maturities of not more than six (6) months
from
the date of acquisition, (iii) shares of money market funds
invested in
the securities described in clause (ii) above and (iv) Dollar
denominated time deposits or certificates of deposit of any
domestic
United States commercial bank whose long-term debt is rated at
least A
by Standard & Poor's Rating Services, a division of The
McGraw-Hill
Companies, Inc. or A2 by Moody's Investors Service, Inc. and
having
capital and surplus in excess of $500,000,000.
"Village/NC Property" -- The fee interest in real property located
at 240
Village Crossing Lane in Winston-Salem, North Carolina owned by
RD
Village.
"Woonsocket/RI Property" -- The fee interest in real property
located at 1500
Diamond Hill Road in Woonsocket, Rhode owned by RD Woonsocket.
Section 1.02. Accounting Terms. All accounting terms not
specifically
defined herein shall be construed in accordance with GAAP, and all
financial
data required to be delivered hereunder shall be prepared in
accordance with
GAAP.
Section 1.03. Computation of Time Periods. Except as otherwise
provided
herein, in this Agreement, in the computation of periods of time
from a
specified date to a later specified date, the word "from" means
"from and
including" and words "to" and "until" each means "to but
excluding".
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Section 1.04. Rules of Construction. Except as expressly provided
otherwise,
when used in this Agreement (i) "or" is not exclusive, (ii)
"hereunder",
"herein", "hereof" and the like refer to this Agreement as a whole,
(iii)
"Article", "Section", "Schedule" and "Exhibit" refer to Articles,
Sections,
Schedules and Exhibits of this Agreement, (iv) terms defined in the
singular
shall have a
correlative meaning when used in the plural and vice versa, (v)
a
reference to a Law includes any amendment, modification or
supplement to, or
replacement of, such Law and (vi) a reference to a document shall
mean such
document as the same may be amended, modified or supplemented from
time to time
in accordance with its terms. The cover page and the Exhibits and
Schedules, if
any, annexed hereto are incorporated as a part of this Agreement
with the same
effect as if set forth in the body hereof. Any table of contents
and all
captions and headings herein are for convenience only and shall not
affect the
interpretation or construction hereof.
ARTICLE II
THE LOAN
Section 2.01. Generally. Subject to the terms and conditions of
this
Agreement, each of the Lenders severally agrees to lend to Borrower
in an amount
up to its Individual Loan Commitment pursuant to which the Lender
shall from
time to time advance and re-advance to Borrower an amount equal to
its Pro Rata
Share of the excess of the Total Loan Commitment over the sum of
(1) all
previous advances of the Loans which remain unpaid and (2) the
outstanding
amount of all Letters of Credit. Within the limits set forth
herein, Borrower
may borrow from time to time under this Section 2.01 and prepay
from time to
time pursuant to Section 2.13 (subject, however, to the
restrictions on
prepayment set forth in said Section), and thereafter re-borrow
pursuant to this
Section 2.01. The Loans may be outstanding as (1) Base Rate Loans,
(2) LIBOR
Loans or (3) a combination of the foregoing, as Borrower shall
elect and notify
Administrative Agent in accordance with Section 2.10. The LIBOR
Loan and Base
Rate Loan of each Lender shall be maintained at such Lender's
Applicable Lending
Office.
Section 2.02. Nature of Lenders' Obligations. The obligations
of
Lenders under this Agreement are several, and no Lender shall be
responsible for
the failure of any other Lender to make any advance of the Loan to
be made by
such other Lender. However, the failure of any Lender to make any
advance of the
Loan to be made by it hereunder on the date specified therefor
shall not relieve
any other Lender of its obligation to make any advance of its
portion of the
Loan specified hereby to be made on such date.
Section 2.03. Purpose. The Loan shall be made for the business
purposes
of working capital, distributions to Borrower's parent company and
repayment of
existing debt. Borrower covenants and agrees that in no event shall
proceeds of
the Loan, or any part thereof, be used, directly or indirectly, for
any other
purpose, for any illegal purpose or for the purpose, whether
immediate,
incidental or ultimate, of buying or carrying "margin stock" within
the meaning
of Regulation U of the Board of Governors of the Federal Reserve
System, or in
connection with any hostile acquisition or for any illegal
purpose.
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<PAGE>
Section 2.04. Advances. The Initial Advance shall be in the amount
of
$12,000,000 and shall be made upon satisfaction of the conditions
set forth in
Section 4.01. Subsequent advances shall be made no more frequently
than once a
month thereafter, upon satisfaction of the conditions set forth in
Section 4.02.
In no event shall Lenders be obligated to make an advance hereunder
if (i) the
Principal Amount of the Loan following such advance (the "Post
Advance Amount")
would exceed 65% of the appraised value of the Mortgaged Property
(the "Loan to
Value Test") as determined by an independent appraisal conducted at
Borrower's
expense by an appraiser selected by Administrative Agent, which
appraisal shall
be conclusive as to value absent manifest error, provided, however,
that
Borrower shall not be obligated to pay for more than one (1)
appraisal per any
twelve (12) consecutive month period so long as no Event of Default
exists or
(ii) if Net Operating Income is not 135% or more of debt service on
the Initial
Advance or the Post Advance Amount, as the case may be (the "DSC
Test"). For
purposes of determining compliance with the DSC Test, Net Operating
Income shall
be calculated on a semi-annual basis using six months' actual
figures and the
projected figures for the next succeeding six months and debt
service shall be
calculated using an interest rate equal to the greater of (a) the
actual
interest rate; (b) the Treasury Rate plus 200 basis points or (c)
an interest
rate equal to 8.0% and a (25) year equal payment self liquidating
amortization
schedule. For purposes of determining compliance with the Loan to
Value Test, a
new appraisal shall not be required for each advance provided the
appraisal
required in connection therewith shall not be more than twelve (12)
months old
and any required reappraisals shall be made at Borrower's expense,
subject to
the limitation set forth in clause (i) above.
Section 2.05. Procedure for Advance. Borrower shall submit to
Administrative Agent a request for the advance of proceeds of the
Loan stating
the amount requested and the purpose for which such advance is to
be used no
later than 10:00 a.m. (New York time) on the date five (5) Business
Days, prior
to the date the advance is to be made. Administrative Agent, upon
its receipt
and approval of the request for advance, will so notify all Lenders
by
facsimile. Not later than 10:00 a.m. (New York time) on the date
set for such
advance, each Lender shall, through its Applicable Lending Office
and subject to
the conditions of this Agreement, make the amount to be advanced by
it on such
day available to Administrative Agent, at Administrative Agent's
Office and in
immediately available funds for the account of Borrower. The amount
so received
by Administrative Agent shall, subject to the conditions of this
Agreement, be
made available to Borrower, in immediately available funds, by
Administrative
Agent's crediting one or more bank accounts of Borrower or any one
or more of
them designated by Borrower in its request for advance. Each
Advance made
pursuant to this Agreement shall be in an amount at least equal to
$1,000,000
and in integral multiples of $100,000.
Section 2.06. Notes. The Loan shall be evidenced by notes of
Borrower
in the form of EXHIBIT D, duly completed and executed by Borrower
(one for each
Lender in an amount equal to such Lender's Individual Loan
Commitment, payable
for the account of such Lender's Applicable Lending Office), in an
aggregate
principal amount equal to the Loan Amount (such notes, as the same
may hereafter
be amended, modified, extended, severed, assigned, substituted,
renewed or
restated from time to time (including, without limitation, any
substitute notes
pursuant to Section 8.07), each, a "Note" and collectively, the
"Notes"). The
Notes shall mature, and all outstanding principal and other sums
thereunder
shall be paid in full, on the Maturity Date, as the same may be
accelerated or
extended.
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<PAGE>
Each Lender is hereby authorized by Borrower to endorse on the
schedule
attached to the Note held by it, the amount of each advance and
each payment of
principal received by such Lender for the account of its Applicable
Lending
Office(s) on account of its Loan, which endorsement shall, in the
absence of
manifest error, be conclusive as to the outstanding balance of the
Loan made by
such Lender. The failure by any Lender to make such notations with
respect to
its Loans or each advance or payment shall not limit or otherwise
affect the
obligations of Borrower under this Agreement or the Notes.
In case of any loss, theft, destruction or mutilation of any
Lender's
Note, Borrower shall, upon its receipt of an affidavit of an
officer of such
Lender as to such loss, theft, destruction or mutilation and an
appropriate
indemnification, execute and deliver a replacement Note to such
Lender in the
same principal amount and otherwise of like tenor as the lost,
stolen, destroyed
or mutilated Note.
Section 2.07. Payments and Distributions; Certain Consequences
of
Delinquent Lender Status. Borrower shall make each payment under
this Agreement
and under the Notes not later than 11:00 a.m. (New York time) on
the date when
due to Administrative Agent at Administrative Agent's Office in
immediately
available funds. Administrative Agent will thereafter, on the day
of its receipt
of each such payment, cause to be distributed to each Lender (i)
such Lender's
appropriate share (based upon the respective outstanding principal
amounts of
the Notes and the respective rates of interest thereunder) of the
payments of
principal and interest, and its appropriate share of the payments
of other sums,
in like funds for the account of such Lender's Applicable Lending
Office.
Payments by Borrower hereunder or under the Notes or other Loan
Documents shall
be made without setoff or counterclaim.
Except to the extent otherwise provided in this Agreement, whenever
any
payment to be made under this Agreement or under the Notes is due
on any day
other than a Business Day, such payment shall be made on the next
succeeding
Business Day, and such extension of time shall in such case be
included in the
computation of the payment of interest and, if applicable, fees, as
the case may
be.
Notwithstanding the foregoing provisions of this Section, (i)
Administrative Agent shall make no payment to a Delinquent Lender
until the
Non-Delinquent Lenders have been paid in full all outstanding
principal, accrued
and unpaid interest and any other sums owing to them under the Loan
Documents,
it being understood that payments of interest on account of the
outstanding
principal amount of the Note held by the Delinquent Lender shall be
held by
Administrative Agent in a non-interest bearing account and not
distributed to
the Delinquent Lender until such time as all principal, interest
and other sums
due to the Non-Delinquent Lenders have been paid in full; (ii) any
payments
(other than interest, as provided in clause (i) above) which would
otherwise be
due a Delinquent Lender shall be distributed to the Non-Delinquent
Lenders until
15
<PAGE>
such time as all principal, interest and other sums due to the
Non-Delinquent
Lenders have been paid in full (except that any such amounts
otherwise due a
Delinquent Lender received by Administrative Agent during an
Election Period
shall be retained by Administrative Agent until the expiration of
the Election
Period and either paid to the Delinquent Lender, if the delinquency
is cured, or
paid to the Non-Delinquent Lenders, if the delinquency is not
cured); and (iii)
Administrative Agent shall deduct, from amounts due (or, in the
case of a
Delinquent Lender, amounts that would otherwise be payable to such
Delinquent
Lender being held by Administrative Agent pursuant to clause (i)
above) a Lender
in default under its obligations under Section 7.05 or the
reimbursement
provisions of this Section 2.07 regarding interpleader actions, the
amount owing
by such Lender pursuant to said Section 7.05 or the reimbursement
provisions of
this Section 2.07 regarding interpleader actions and pay the amount
so deducted
to itself, the other Lenders, or such other party as is entitled to
such amount,
as applicable.
If, following such time as all amounts owing under the Loan to
the
Non-Delinquent Lenders and Administrative Agent have been paid in
full,
Administrative Agent is holding funds in respect of amounts payable
to the
Delinquent Lender as provided in the third paragraph of this
Section,
Administrative Agent shall file an interpleader action in New York
State Supreme
Court, New York County and shall deposit the funds so held (less a
sum equal to
Administrative Agent's reasonable fees and expenses in connection
with said
interpleader action and deposit) with said court and Administrative
Agent shall
thereupon be relieved of responsibility to any party with respect
to the funds
deposited. Borrower and each Delinquent Lender hereby jointly and
severally
agree to reimburse Administrative Agent for all costs and expenses
that
Administrative Agent may incur in connection with the foregoing
interpleader
action.
Except as provided above in this Section and in Section 7.16,
each
Lender's interest in the Loan shall be of equal priority with the
interest of
each other Lender.
Section 2.08. Interest. Borrower shall have the option, subject to
the
terms and conditions set forth in this Agreement, of paying
interest on the
Principal Amount or portions thereof at the Prime Based Rate or the
LIBO Based
Rate. If Borrower desires the application of the LIBO Based Rate,
it shall
submit a LIBO Rate Request to Administrative Agent, which LIBO Rate
Request
shall be irrevocable, subject to Borrower's right to convert the
rate of
interest payable under the Notes with respect to any LIBOR Amount
from the LIBO
Based Rate to the Prime Based Rate as provided in Section 2.10.
Administrative
Agent shall, on the day of its receipt of the LIBO Rate Request
from Borrower,
notify each Lender by facsimile of the specified LIBOR Amount and
the amount of
the Lender's portion thereof, the Interest Period and date of
commencement
thereof, and the interest rate applicable to such LIBOR Amount.
Each LIBO Rate
Request shall be applicable to the Notes in accordance with the
Lenders'
respective Pro Rata Shares, so that, barring a conversion or
suspension of the
LIBO Based Rate by one or more, but not all, Lenders, pursuant to
Article III,
the outstanding principal amounts of each of the Notes shall
contain segments
bearing interest at the Prime Based Rate and/or LIBO Based Rate(s)
under
particular Interest Period(s), each of which segments shall
correspond to a
proportional segment of the outstanding principal amount of every
other Note. In
the event that Borrower fails to submit a LIBO Rate Request with
respect to a
LIBOR Amount not later than 12 Noon (New York time) three (3)
Business Days
prior to the last day of the relevant Interest Period, the LIBOR
Amount in
question shall bear interest, commencing at the end of such
Interest Period, at
the Prime Based Rate for a one (1) month Interest Period.
16
<PAGE>
Interest shall be computed on an actual/360-day basis (i.e.,
interest
for each day during which any portion of the Principal Amount is
bearing
interest at a particular interest rate per annum shall be computed
at such rate
divided by 360).
Borrower shall pay interest on the Principal Amount to
Administrative
Agent for the account of Lenders. Interest on the Principal Amount
shall be
payable, in arrears, monthly on the first day of the first month
following the
Initial Advance and on the first day of each month thereafter until
the Notes
are repaid in full.
Section 2.09. Limitation on Number of Interest Periods. Borrower
shall
not have the right to have more than five (5) Interest Periods, in
the
aggregate, in respect of the Loan in effect at any one time,
whether or not any
portion of the Principal Amount is then bearing interest at the
Prime Based
Rate.
Section 2.10. Conversions of Interest Rate. Provided there exists
no
Event of Default, Borrower shall have the right to convert, from
time to time,
the rate of interest payable under the Notes with respect to any
portion of the
Principal Amount to the LIBO Based Rate or the Prime Based Rate,
subject to the
terms of this Agreement (including, without limitation, the payment
of all
amounts due in connection with any such conversion from the LIBO
Based Rate on a
date other than the last day of an applicable Interest Period) and
provided
that, in the case of a conversion from the LIBO Based Rate, the
entire LIBOR
Amount is the subject of the conversion. Conversions shall be
accomplished (i)
in the case of a conversion from the Prime Based Rate to the LIBO
Based Rate, by
Borrower's submission of a LIBO Rate Request in accordance with
Section 2.08 or
(ii) in the case of a conversion from the LIBO Based Rate to the
Prime Based
Rate, by Borrower's request to Administrative Agent by telephone
(to be promptly
confirmed in writing), to be received by Administrative Agent at
least three (3)
Business Days prior to the date specified for such conversion,
specifying the
LIBOR Amount with respect to which the interest rate is to be
converted and the
date of the conversion. With respect to any portion of the
Principal Amount
subject to the LIBO Based Rate, Borrower shall not have the right
to convert
from one Interest Period to another other than the last day of an
applicable
Interest Period. On the date of its receipt of such request,
Administrative
Agent shall notify each Lender thereof either by telephone or by
facsimile.
Section 2.11. Inapplicability of LIBO Based Rate. Any portion of
the
Principal Amount to which the LIBO Based Rate is not or cannot
pursuant to the
terms of this Agreement be applicable shall bear interest at the
Prime Based
Rate. Upon the occurrence of an Event of Default, the entire
Principal Amount
shall, at the option of the Required Lenders, immediately and
without notice to
Borrower, bear interest at the Prime Based Rate. In addition,
following the
occurrence of an Event of Default, Borrower shall have no right to
submit a LIBO
Rate Request with respect to any LIBOR Amount for which the current
Interest
Period is expiring. The foregoing provisions shall not be construed
as a waiver
by Lenders of their right to pursue any other remedies available to
them under
the Mortgage or any other Loan Document nor shall they be construed
to limit in
any way the application of the Default Rate as provided in the
Mortgage.
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<PAGE>
Section 2.12. Late Payment Premium. Borrower shall pay to
Administrative Agent for the account of Lenders a late payment
premium in the
amount of 5% of any payments of principal or interest under the
Loan made more
than ten (10) days after the due date thereof, which late payment
premium shall
be due with any such late payment.
Section 2.13. Voluntary Prepayments. Borrower may, upon at least
five
(5) Business Days' notice (which notice shall be irrevocable) to
Administrative
Agent, prepay the Principal Amount, in whole or part, without
premium or
penalty; provided, however, that (i) any partial prepayment under
this Section
shall be in a principal amount of not less than $1,000,000 and an
integral
multiple of $100,000, (ii) prepayment of a LIBOR Amount other than
on the last
day of the applicable Interest Period shall be subject to the
provisions of
Section 3.03 and (iii) each prepayment under this Section shall
include all
interest accrued on the amount of principal prepaid (and all late
charges and
other sums that may be payable) through the date of prepayment.
Amounts prepaid
may not be reborrowed.
Section 2.14. Annual Commitment Reduction/Required
Amortization.
Commencing on the first day of June, 2006 and on the first day of
each April
thereafter until the Maturity Date both the Loan Amount and the
Total Loan
Commitment shall reduce by the amount set forth on Schedule A
attached hereto
and, to the extent the Loan Amount as so reduced would exceed the
Principal
Amount, Borrower shall, on the date of reduction make a mandatory
principal
payment in the amount of such excess such that, at no time, shall
the Principal
Amount exceed the Loan Amount as reduced from time to time. After
any release of
a Property, in accordance with Section 8.18 or otherwise,
Administrative Agent
shall recalculate the required annual amortization payments due
hereunder in
accordance with a constant annual payment mortgage schedule based
on the
Principal Amount at such time and an assumed interest rate of 8%
per annum,
which would fully amortize over a term equal to (x) twenty-five
(25) years less
(y) the number of full twelve (12) month periods elapsed since the
date hereof.
Administrative Agent shall provide Borrower with a schedule of such
recalculated
amortization payment schedule upon request and such schedule shall
be final and
binding upon Borrower absent manifest error.
Section 2.15. Nature of Lenders' Obligations; Borrower's Rights
and
Obligations in Event a Lender Fails to Make an Advance. The
obligations of
Lenders under this Agreement are several, and no Lender shall be
responsible for
the failure of any other Lender to fund the portion required to be
funded by
such other Lender of an advance of the Loan.
18
<PAGE>
ARTICLE III
YIELD MAINTENANCE ETC.
Section 3.01. Additional Costs and Other Effects of Regulatory
Changes;
Taxes. Borrower shall pay directly to a Lender, promptly upon
demand, such
amounts as are necessary to compensate such Lender for Additional
Costs
resulting from any Regulatory Change which (i) subjects such Lender
to any tax,
duty or other charge with respect to the Loan or its Note, or
changes the basis
of taxation of any amounts payable to such Lender under the Loan or
its Note
(other than taxes imposed on the overall net income of such Lender
or of its
Applicable Lending Office by the jurisdiction in which such
Lender's principal
office or such Applicable Lending Office is located), (ii) imposes,
modifies or
deems applicable any reserve, special deposit or similar
requirements relating
to any extensions of credit or other assets of, or any deposits
with or other
liabilities of, such Lender, (iii) imposes on such Lender or, in
the case of
LIBOR Amounts, on the London interbank market, any other condition
affecting the
Loan or its Note, or any of such extensions of credit or
liabilities or (iv)
imposes any capital adequacy requirements on such Lender by virtue
of the Loan
or the Notes. Such Lender will notify Borrower (with a copy to
Administrative
Agent) of any event occurring after the date hereof which would
entitle it to
compensation pursuant to this paragraph as promptly as practicable
after it
obtains knowledge thereof and determines to request such
compensation, and will
designate a different Applicable Lending Office for those portions
of the Loan
affected by such event if such designation will avoid the need for,
or reduce
the amount of, such compensation and will not, in such Lender's
sole opinion, be
disadvantageous to it, provided that such Lender shall have no
obligation to so
designate an Applicable Lending Office located in the United
States.
Without limiting the effect of the immediately preceding paragraph,
in
the event that, by reason of any Regulatory Change, (i) a Lender
incurs
Additional Costs based on or measured by the excess above a
specified level of
the amount of (1) a category of deposits or other liabilities of
such Lender
which includes deposits by reference to which the LIBO Rate is
determined as
provided in this Agreement and/or (2) a category of extensions of
credit or
other assets of such Lender which includes loans the interest on
which is
determined on the basis of rates referred to in the definition of
"LIBO Rate" in
Section 1.01, (ii) a Lender becomes subject to restrictions on the
amount of
such a category of liabilities or assets which it may hold or (iii)
it shall be
unlawful or impossible for a Lender to make or maintain its Pro
Rata Share of
the Loan (or any portion thereof) at the LIBO Based Rate, then such
Lender's
obligation to make or maintain its Pro Rata Share of the Loan (or
any portion
thereof) at the LIBO Based Rate (and Borrower's right to request
the same) shall
be suspended and such Lender shall give notice thereof to Borrower
(with a copy
to Administrative Agent) and, upon the giving of such notice,
interest payable
on the affected Note shall be converted to the Prime Based Rate,
unless such
Lender may lawfully continue to maintain its Pro Rata Share of the
Loan (or any
portion thereof) then bearing interest at the LIBO Based Rate to
the end of the
current Interest Period(s), at which time the interest rate on the
affected Note
shall convert to the Prime Based Rate. If subsequent to any
conversion to the
Prime Based Rate as provided above such Lender determines that such
Regulatory
Change has ceased to be in effect, such Lender will so notify
Borrower (with a
copy to Administrative Agent), and Borrower may convert the rate of
interest
payable under the affected Note with respect to those portions of
the Principal
Amount bearing interest at the Prime Based Rate to the LIBO Based
Rate by
submitting a LIBO Rate Request in respect thereof and otherwise
complying with
the provisions of this Agreement with respect thereto.
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Determinations by each Lender of the existence or effect of any
Regulatory Change on its costs of making or maintaining its Pro
Rate Share of
the Loan, or portions thereof, at the LIBO Based Rate, or on
amounts receivable
by it in respect thereof, and of the additional amounts required to
compensate
such Lender in respect of Additional Costs, shall be conclusive, so
long as made
on a reasonable basis.
Section 3.02. Limitations on Availability of LIBO Based Rate.
Anything
herein to the contrary notwithstanding, if, at the time of or prior
to the
determination of the LIBO Based Rate in respect of any LIBO Rate
Request Amount
as provided in this Agreement, (i) Administrative Agent determines
(which
determination shall be conclusive, so long as made on a reasonable
basis) that
by reason of circumstances affecting the London interbank market
generally,
adequate and fair means do not or will not exist for determining
the LIBO Rate
applicable to an Interest Period or (ii) a Lender determines
(which
determination shall be conclusive, so long as made on a reasonable
basis) that
the LIBO Rate will not accurately reflect the cost to such Lender
of making or
maintaining its Pro Rata Share of the Loan (or any portion thereof)
at the LIBO
Based Rate, then Administrative Agent, in the case of the
circumstances
described in clause (i) above, or such Lender, in the case of the
circumstances
described in clause (ii) above, shall give Borrower prompt notice
thereof (with
a copy to Administrative Agent in the case of the notice from such
Lender), and
the LIBO Rate Request Amount in question, in the case of the
circumstances
described in clause (i) above, or such Lender's portion thereof, in
the case of
the circumstances described in clause (ii) above, shall bear
interest, or
continue to bear interest, as the case may be, at the Prime Based
Rate. If at
any time subsequent to Administrative Agent's or such Lender's
giving of such
notice, Administrative Agent or such Lender, as the case may be,
determines that
because of a change in circumstances the LIBO Based Rate is again
available to
Borrower, Administrative Agent or such Lender, as the case may be,
shall so
notify Borrower (with a copy to Administrative Agent, in the case
of the notice
from such Lender) and Borrower may convert the rate of interest
payable under
the Notes or such Lender's Note, as the case may be, from the Prime
Based Rate
to the LIBO Based Rate by submitting a LIBO Rate Request in respect
thereof and
otherwise complying with the provisions of this Agreement with
respect thereto.
Section 3.03. Certain Compensation. Borrower shall pay directly to
a
Lender, immediately upon request and notwithstanding contrary
provisions
contained in the Mortgage or other Loan Documents, such amounts as
shall, in the
judgment of such Lender (which shall be conclusive so long as made
on a
reasonable basis), compensate it for any loss, cost or expense
incurred by it as
a result of (i) any payment or prepayment (under any circumstances
whatsoever,
whether voluntary or involuntary) of any portion of the Principal
Amount bearing
interest at the LIBO Based Rate on a date other than the last day
of an
applicable Interest Period, (ii) the conversion (for any reason
whatsoever,
whether voluntary or involuntary) of the rate of interest payable
under such
Lender's Note from the LIBO Based Rate to the Prime Based Rate with
respect to
any portion of the Principal Amount then bearing interest at the
LIBO Based Rate
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on a date other than the last day of an applicable Interest Period,
(iii) the
failure of all or a portion of an advance of the Loan which was to
have borne
interest at the LIBO Based Rate pursuant to a LIBO Rate Request to
be made, (iv)
any failure by Borrower to prepay any portion of the Principal
Amount bearing
interest at the LIBO Based Rate on the date specified in Borrower's
notice of
prepayment or (v) the failure of Borrower to borrow, continue or
convert in
accordance with a LIBO Rate Request submitted by it, which amounts
shall
include, without limitation, an amount equal the Present Value
(determined as
hereinafter provided) of the dollar amount which is obtained by
multiplying the
number of days from the date of the occurrence to the last day of
the applicable
Interest Period by a number which is calculated by (i) multiplying
the amount
prepaid, converted, not advanced, not prepaid or not borrowed, as
the case may
be, by the excess of the LIBO Based Rate applicable thereto over
the current
rate for United States Treasury securities (bills on a discounted
basis shall be
converted to a bond equivalent) with a maturity date closest to the
last day of
the applicable Interest Period and (ii) dividing the product
thereof by 360. For
purposes of this Section, Present Value shall be determined by
using the number
of days during the period from the date of occurrence to and
including the last
day of the applicable Interest Period and using the
above-referenced United
States Treasury security rate. A determination by a Lender as to
the amounts
payable to it pursuant to this Section shall be conclusive absent
manifest
error.
Section 3.04. "Lender" to Include Participants. For purposes of
this
Article III and of the definition of "Additional Costs" in Section
1.01, the
term "Lender" shall, at each Lender's option, be deemed to include
such Lender's
present and future Participants in the Loan to the extent of each
such
Participant's actual Additional Costs or other losses, costs or
expenses payable
pursuant to this Article III.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Loan. Lenders shall not
be
obligated to make the Initial Advance until the following
conditions shall have
been satisfied:
(a) There shall exist no Default or Event of Default, and no
Default or Event of Default would result from the making of the
Loan;
(b) The representations and warranties made to Administrative
Agent or Lenders herein, in the other Loan Documents and in any
other
document, certificate or statement executed or delivered to
Administrative Agent or Lenders in connection with the Loan shall
be
true and correct on and as of the date of the advance of the Loan
with
the same effect as if made on such date;
(c) The
Improvements shall not have been materially injured or
damaged by fire or other casualty; and
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(d) Lenders shall have received and approved each of the
following:
(1) Loan Fees and Expenses. (i) A non-refundable
facility fee in respect of this Loan (without credit for any
amounts paid under existing credit facilities refinanced
hereby) in the amount of $325,000, to be retained by Lenders
whether or not any advances are made hereunder and (ii) all
fees and expenses incurred by Administrative Agent (including,
without limitation, the reasonable fees and expenses of
Administrative Agent's Counsel, Lenders' environmental and
insurance consultants, and the preparer of the appraisal
required by paragraph (4) below);
(2)
Loan Documents. This Agreement and each of the other
Loan Documents, duly executed by the parties thereto, and,
where applicable, duly acknowledged and in proper form for
recording or filing, as the case may be, and all necessary or
desirable recordings and filings shall have been duly made;
(3) Financial Statements. Current Financial Statements
and such other financial data (including, without limitation,
current financial statements of tenants under leases in
respect of the Mortgaged Property and of parties to any of the
Premises Documents, and of the guarantor(s), if any, of any
such tenants or parties) as Administrative Agent shall
require;
(4) Appraisal. An independent M.A.I. appraisal of the
Property and Improvements complying in all respects with the
standards for real estate appraisals established pursuant to
the Financial Institutions Reform, Recovery, and Enforcement
Act of 1989;
(5) Insurance Policies. The policies of insurance
required by the Mortgage, together with evidence of the
payment of the premiums therefor;
(6) Hazardous Materials Report/Reliance Letter. A
detailed report by a properly qualified engineer, which shall
include, inter alia, a certification that such engineer has
obtained and examined a list of prior owners, tenants and
other users of all or any portion of the Property or any
improvements thereon, and has made an on-site physical
examination of the Property, and a visual observation of the
surrounding areas, and has found no evidence of past or
present Hazardous Materials activities or the presence of
Hazardous Materials, together with, if required by
Administrative Agent, a "reliance letter" addressed to
Administrative Agent with respect to such report;
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(7) Title Policy. A paid title insurance policy, in the
amount of the Loan Allocation for each property in ALTA
10-17-92 or other form approved by Administrative Agent's
Counsel with such endorsements as shall be reasonably
requested by Administrative Agent's Counsel (including
"tie-in" endorsements aggregating liability under such
policies to the extent permitted by Law), issued by the Title
Insurer which shall insure the Mortgage to be a valid lien on
Borrower's interest in the premises free and clear of all
defects and encumbrances except those previously received and
approved by Administrative Agent's Counsel, and shall contain
(i) full coverage against mechanics' liens (filed and
inchoate), (ii) a reference to the survey but no survey
exceptions except those theretofore approved by Administrative
Agent's Counsel, (iii) such affirmative insurance and
endorsements as Administrative Agent's Counsel may require,
and (iv) if any such policy is dated earlier than the date of
the disbursement of the Loan, an endorsement to such policy,
in form approved by Administrative Agent's Counsel, redating
the policy and setting forth no additional exceptions except
those approved by Administrative Agent's Counsel; and shall be
accompanied by such reinsurance agreements between the Title
Insurer and title companies approved by Lender, in ALTA 1994
facultative form, as Lender may require;
(8) Survey. A current ALTA/ACSM, as-built survey of the
Property, certified to Lender and the Title Insurer showing
(i) the location of the perimeter of the Property by courses
and distances, (ii) all easements, rights-of-way, and utility
lines referred to in the title policy required by this
Agreement or which actually service or cross the Property
(with instrument, book and page number indicated), (iii) the
lines of the streets abutting the Property and the width
thereof, and any established building lines (and that such
roads have been dedicated for public use and are completed and
have been accepted by all required Governmental Authorities),
(iv) any encroachments and the extent thereof upon the
Property, (v) locations of all portions (with the acreage
thereof also identified) of the Property, if any, which are
located in an area designated as a "flood prone area" as
defined by U.S.
Department of Housing and Urban Development
pursuant to the Flood Disaster Protection Act of 1973 and (vi)
the Improvements, and the relationship thereof by distances to
the perimeter of the Property, established building, setback
and street lines and (vi) if the Property is described as
being on a filed map, a legend relating the survey to said
map;
(9) Leases and Premises Documents. Certified copies of
all leases in respect of the Mortgaged Property, accompanied
by, in the case of Anchors and any other leases specified by
Administrative Agent, estoppel certificates from the tenants
thereunder and executed notice-of-assignment letters in the
form of EXHIBIT B in respect thereof; executed subordination
and attornment agreements, in Administrative Agent's usual
form, in respect of such leases as Administrative Agent may
require; a certified copy of the standard form of lease or
contract of sale, as the case may be, Borrower will use in
connection with the leasing of space in the Improvements or
the sale of portions of the Property; certified copies of all
Premises Documents, together with estoppel certificates from
the parties thereto and a certified current rent roll for the
Improvements;
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<PAGE>
(10) Requisition. A Requisition for the Initial Advance,
(11) Counsel Opinions. Opinions of Borrower's counsel
and local counsel (and, if required by Lender, of a local
counsel selected by Lender or Administrative Agent's Counsel)
to the effects set forth on EXHIBIT C;
(12) Organizational Documents. If Borrower, the
mortgagor or grantor under any Mortgage (if different from
Borrower), Guarantor or any general partner or member of any
of them is a corporation, current copies of the following
documents with respect to each (unless otherwise indicated):
(i) a good-standing certificate from the
jurisdiction of its incorporation and, as to Borrower
and the mortgagor or grantor under the Mortgage only,
from the jurisdiction in which the Property is located,
(ii) a resolution, certified by the corporate
secretary, of the shareholders or directors of the
corporation authorizing the consummation of the
transactions contemplated hereby and the execution,
delivery and performance of the Loan Documents and any
other documents to be executed, delivered or performed
by said corporation (including any substitute or
replacement Notes to be executed and delivered pursuant
to the terms hereof), and
(iii) a certificate of the corporate secretary as
to the incumbency of the officers executing any of the
documents required hereby,
and, if Borrower, the mortgagor or grantor under the Mortgage
(if different from Borrower), Guarantor or any general partner
or member of any of them is a partnership, venture, limited
liability company or trust:
(iv) the entity's organizational agreement and all
amendments and attachments thereto, certified by a
general partner, venturer, member or trustee to be true
and complete,
(v) any certificates filed or required to be filed
by the entity in the jurisdictions of its formation and
where the Property is located in order for it to do
business in those jurisdictions, and
(vi) evidence of the authorization of the
consummation of the transactions contemplated hereby and
the execution, delivery and performance of the Loan
Documents and any other documents to be executed,
delivered or performed by said entity (including any
substitute or replacement notes to be executed and
delivered pursuant to the terms hereof), and including
any required consents by partners, venturers, members,
trustees or beneficiaries;
24
<PAGE>
(13) Management and Leasing Contracts. Copies, certified
to be true and complete, of all existing contracts providing
for the management, maintenance, operation or leasing of the
Property and Improvements, together with, in each case, such
collateral assignments or "will-serve" letters as
Administrative Agent may require;
(14)
Permits and Approvals. Copies of the certificate(s)
of occupancy for the Improvements and of any and all other
authorizations (including plot plan and subdivision approvals,
zoning variances, water, sewer, building and other permits)
required by Governmental Authorities or otherwise necessary
for the use, occupancy and operation of the Property and/or
Improvements for their intended purposes in accordance with
all applicable Laws;
(15) Intentionally Omitted;
(16) Chattel Searches. UCC searches against Borrower or
other owner of the Mortgaged Property and advice from the
Title Insurer to the effect that searches of proper public
records disclose no leases of personalty or financing
statements filed or recorded against the Mortgaged Property,
Borrower
or other owner of any Mortgaged Property;
(17) Intentionally Omitted; and
(18) Additional Documentation. Such other approvals,
opinions or documents as Lender may reasonably request
including, but not limited to, (i) a current certified rent
roll for the Mortgaged Property and tenant estoppel letters
for all Anchors, (ii) ground lessor estoppel certificates from
the ground
lessor with respect to any ground leases encumbered
by the Mortgage and (iii) current financial statements of
Guarantor showing a minimum net worth of $100,000,000 (the
"Net Worth Requirement") and a minimum Unrestricted Cash and
Cash Equivalents of $10,000,000 (the "Liquidity Requirement").
Section 4.02. Conditions to Advances After the Initial Advance.
In
addition to the Initial Advance, an amount of Loan proceeds (each
such advance,
an "Additional Advance") shall be made available to Borrower
subject to the
satisfaction of the following conditions:
(a) Subject to the limitations set forth in Section 2.04 and
Section 4.02(h) with respect to any Additional Advance), the amount
of
each Additional Advance subsequent to the Initial Advance shall be
in
the minimum amount of $100,000 (unless less than said amount is
available for disbursement pursuant to the terms hereof at the time
of
such Additional Advance, in which case the amount of such
subsequent
advance shall be equal to such remaining availability).
25
<PAGE>
(b) All conditions of Section 4.01 shall have been and remain
satisfied as of the date of such advances;
(c) There shall exist no Default or Event of Default;
(d) The representations and warranties made to Administrative
Agent and Lenders herein, in the other Loan Documents and in any
other
document, certificate or statement executed or delivered to
Administrative Agent or Lenders in connection with the Loan shall
be
true and correct on and as of the date of the advance with the
same
effect as if made on such date (except for the updated rent
roll);
(e) Lender shall have received a Requisition, and, if
required, a title continuation report;
(f) There shall have occurred no material adverse change in
the condition or value of the "Mortgaged Property", as defined in
the
Mortgage;
(g) Mortgagor shall furnish Administrative Agent with a
statement, duly acknowledged, of the amount due whether for
principal
or interest, on the Loan and whether any offsets, counterclaims
or
defenses exist against the indebtedness secured hereby; and
(h) The aggregate outstanding proceeds of the Loan, including
the amount of the advance being requested, shall not exceed the
amount
necessary to satisfy the Loan to Value Test and the DSC Test
for
Additional Advances.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower and Guarantor represent and warrant to Administrative
Agent
and Lenders that:
Section 5.01. Due Formation, Power and Authority. If it, the
mortgagor
or grantor under the Mortgage (if different from Borrower),
Guarantor or any
general partner or member of any of them is a corporation,
partnership, venture,
limited liability company or trust, each such entity is duly
organized, validly
existing and in good standing under the Laws of the jurisdiction of
its
formation, is qualified to do business (if required) and is in good
standing in
the jurisdiction in which the Property is located, and has full
power and
authority to consummate the transactions contemplated hereby and to
execute,
deliver and perform this Agreement and any other Loan Document to
which it is a
party.
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<PAGE>
Section 5.02. Legally Enforceable Agreements. Each Loan Document
to
which Borrower or Guarantor is a party is a legal, valid and
binding obligation
of such party, enforceable against Borrower or Guarantor, as the
case may be, in
accordance with its terms, except to the extent that such
enforcement may be
limited by applicable bankruptcy, insolvency and other similar Laws
affecting
creditors' rights generally.
Section 5.03. Financial Statements. Financial Statements have
been
heretofore delivered to Lenders which are true, correct and current
in all
respects and which fairly present the respective financial
conditions of the
subjects thereof as of the respective dates thereof; no material
adverse change
has occurred in the financial conditions reflected therein since
the respective
dates thereof and no borrowings (other than the Loan) which might
give rise to a
lien or claim against the Mortgaged Property or proceeds of the
Loan have been
made by Borrower or others since the dates thereof.
Section 5.04. Compliance With Laws; Payment of Taxes. Borrower
and
Guarantor are in compliance with, and the transactions contemplated
hereby and
by the other Loan Documents do not and will not violate any
provision of, or
require any filing, registration, consent or approval under, any
Law presently
in effect having applicability to Borrower or Guarantor; Borrower
has filed all
tax returns (federal, state and local) required to be filed and has
paid all
taxes, assessments and governmental charges and levies due and
payable
(including those in respect of the Mortgaged Property), including
interest and
penalties.
Section 5.05. Litigation. There are no actions, suits or
proceedings
pending or threatened against or affecting it, Guarantor, the
Mortgaged
Property, the validity or enforceability of the Mortgage or the
priority of the
lien thereof at law, in equity or before or by any Governmental
Authorities
except actions, suits or proceedings which have been disclosed to
Administrative
Agent and Lenders in writing and which are fully covered by
insurance or would,
if adversely determined, not substantially impair the ability of
Borrower or
Guarantor to pay when due any amounts which may become payable
under the Notes
or Guaranty or to otherwise pay and perform their respective
obligations in
connection with the Loan; to Borrower's knowledge, neither it nor
Guarantor is
in default with respect to any order, writ, injunction, decree or
demand of any
court or Governmental Authorities.
Section 5.06. No Conflicts or Defaults. The consummation of the
transactions contemplated hereby and the performance hereof and of
the other
Loan Documents have not resulted and will not result in any breach
of, or
constitute a default under, any mortgage, deed of trust, lease,
bank loan or
credit agreement, corporate charter, by-laws, partnership agreement
or other
instrument to which Borrower or Guarantor is a party or by which
either of them
may be bound or affected.
Section 5.07. Solvency. Borrower and Guarantor are, and upon
consummation of the transactions contemplated by this Agreement,
the other Loan
Documents and any other related documents, will be, Solvent.
27
<PAGE>
Section 5.08. Governmental Regulation. Borrower is not subject
to
regulation under the Investment Company Act of 1940 or any Law
limiting its
ability to incur indebtedness for money borrowed as contemplated
hereby.
Section 5.09. Insurance. Borrower has in force, and has paid
the
premiums in respect of, all of the insurance required by the
Mortgage.
Section 5.10. ERISA. Neither Borrower nor Guarantor nor any
other
Person, including any fiduciary, has engaged in any prohibited
transaction (as
defined in Section 4975 of the Code or Section 406 of ERISA) which
could subject
Borrower or Guarantor or any Person whom they have an obligation to
indemnify to
any tax or penalty imposed under Section 4975 of the Code or
Section 502 of
ERISA; neither Borrower nor Guarantor nor any ERISA Affiliate
maintains,
contributes to or has any liability with respect to a Multiemployer
Plan or any
other plan subject to Title IV of ERISA; each Employee Benefit Plan
is
administered in accordance with its terms and in compliance with
all applicable
Laws, including any reporting requirements; each Pension Plan
intending to
qualify under Section 401(a) or 401(k) of the Code does so qualify;
there is no
lien outstanding or security interest given in connection with a
Pension Plan;
neither Borrower nor Guarantor nor any ERISA Affiliate has any
liability with
respect to an accumulated funding deficiency (whether or not
waived) under
Section 412 of the Code or Section 302 of ERISA; neither Borrower
nor Guarantor
has any liability for retiree medical or death benefits (contingent
or
otherwise) other than as required by Section 4980B of the Code; and
no part of
the funds to be used by Borrower or Guarantor in satisfaction of
their
respective obligations under this Agreement and the other Loan
Documents
constitute "plan assets" of any "employee benefit plan" within the
meaning of
ERISA or of any "plan" within the meaning of Section 4975(e)(1) of
the Code, as
interpreted by the Internal Revenue Service and the United States
Department of
Labor in rules, regulations, releases or bulletins or as
interpreted under
applicable case law.
Section 5.11. Other Documents. The Major Leases and Premises
Documents
are unmodified and in full force and effect, there are no defaults
(or events
which with notice or the passage of time, or both, would constitute
such a
default) under any thereof and all conditions to the effectiveness
and
continuing effectiveness thereof required to be satisfied as of the
date hereof
have been satisfied.
Section 5.12. No Defaults. There exists no Default or Event of
Default.
Section 5.13. Accuracy of Information; Full Disclosure. Neither
this
Agreement nor any documents, financial statements, reports,
notices, schedules,
certificates, statements or other writings furnished by or on
behalf of Borrower
or Guarantor to Lender in connection with the negotiation of this
Agreement or
the other Loan Documents or the consummation of the transactions
contemplated
hereby, or required herein or by the other Loan Documents to be
furnished by or
on behalf of Borrower or Guarantor, contains any untrue or
misleading statement
of a material fact or omits a material fact necessary to make the
statements
herein or therein not misleading; there is no fact which Borrower
has not
disclosed to Administrative Agent and Lenders in writing which
materially
affects adversely nor, so far as Borrower can now foresee, will
materially
affect adversely any of the Mortgaged Property or the business
affairs or
financial condition of Borrower or Guarantor, or the ability of
Borrower or
Guarantor to perform this Agreement and the other Loan
Documents.
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<PAGE>
Section 5.14. Separate Tax and Zoning Lot. Each Mortgaged
Property
constitutes a distinct parcel for purposes of zoning and of taxes,
assessments
and impositions (public or private) and are not otherwise
considered as part of
a larger single lot for purposes of zoning or of taxes, assessments
or
impositions (public or private).
Section 5.15. The Improvements. There are no structural defects in
the
Improvements or violations of any requirement of any Governmental
Authorities
with respect thereto; the use, occupancy and operation of the
Improvements
comply with all applicable permits and restrictive covenants
affecting the
Mortgaged Property, as well as with the Premises Documents and with
all zoning,
building, environmental, ecological, landmark, subdivision and
other Laws, and
all requirements for such use, occupancy and operation have been
satisfied;
there exist a sufficient number of parking spaces necessary to
satisfy the
requirements of the Premises Documents and any leases and all
zoning and other
applicable legal requirements with respect to the Mortgaged
Property, and all
required landscaping, sidewalks and other amenities, and all
off-site
improvements, related to the Improvements have been completed.
Section 5.16. Utility Services. All utility services necessary for
the
use and operation of the Improvements for their intended purposes
are available
and servicing the Property, including water supply, storm and
sanitary sewer,
gas, electric power and telephone facilities.
Section 5.17. Creation of Liens. It has entered into no contract
or
arrangement of any kind the performance of which by the other party
thereto
would give rise to a lien on the Mortgaged Property or any part
thereof.
Section 5.18. Roads. All roads necessary for the full utilization
of
the Improvements for their intended purposes have been completed
and dedicated
to public use and accepted by all appropriate Governmental
Authorities.
Section 5.19. Requisition as Reaffirmation. Each Requisition
submitted
to Administrative Agent, and the receipt of the funds requested
thereby, shall
constitute an affirmation by Borrower that the representations and
warranties
contained herein and in the other Loan Documents remain true and
correct as of
the respective dates of such Requisitions.
Section 5.20. Patriot Act.
(a) As of the date hereof, none of the funds or other assets of
Borrower or of any of its direct or indirect owners (including
Guarantor)
constitute property of, or are beneficially owned, directly or
indirectly, by,
any Person subject to trade restrictions under United States Law,
including
those who are covered by the International Emergency Economic
Powers Act, 50
U.S.C. ss.ss.1701 et seq., The
