REVOLVING CREDIT AGREEMENT Between WASHINGTON MUTUAL BANK, as Lender and ACADIA REALTY LIMITED PARTNERSHIP, as Borrower Dated as of March , 2007 Loan No. 625029471
Exhibit 10.62
Between
WASHINGTON MUTUAL BANK,
as Lender
as Lender
and
ACADIA REALTY LIMITED PARTNERSHIP,
as Borrower
as Borrower
Dated as of March , 2007
Loan No. 625029471
THIS REVOLVING CREDIT AGREEMENT (this “Agreement”), dated as of the date set forth on the
cover page of this Agreement, is made by and between ACADIA REALTY LIMITED PARTNERSHIP, a Delaware
limited partnership (“Borrower”), and WASHINGTON MUTUAL BANK, a federal association (“Lender”).
RECITALS
Borrower has requested that Lender make loan advances to Borrower from time to time. Subject
to the terms and conditions of this Agreement and of the other Loan Documents (as defined below)
Lender is willing to make such advances as provided in this Agreement.
Accordingly, the parties agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1. Certain Defined Terms. As used in this Agreement, the following terms
will have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
“Advance” means an advance of proceeds of the Loan by Lender to Borrower pursuant to
Article II.
“Affiliate” means any Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with, another identified Person. A Person will be deemed
to control a corporation or other entity if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such corporation or other
entity, whether through the ownership of voting securities, by contract or otherwise.
“Applicable Margin” means the interest rate per annum specified as the Applicable
Margin in Schedule 1, which is to be added to the Current Index in determining the Interest
Rate.
“Authorized Officer” means any one of the individuals identified as Authorized
Officers in Schedule 1, or such other officer or other individual as Borrower may designate
as an Authorized Officer by means satisfactory to Lender.
“Borrower” has the meaning specified in the preamble to this Agreement.
“Borrowing” means a borrowing consisting of the making of an Advance.
“Borrowing Request” means a request in substantially the form of Exhibit B, or
in such other form as Lender may specify from time to time, made by Borrower to Lender for a
Borrowing pursuant to the terms of this Agreement.
“Business Day” means a day that is not a Saturday, Sunday or other day on which banks
are required or authorized to close in the location of Lender’s Applicable Office.
“Commitment” has the meaning specified in Section 2.1.
“Current Index” has the meaning specified in Section 2.5.
“Date Down Endorsement” has the meaning specified in Section 3.1.
“Debt Service Coverage Ratio” has the meaning specified in Schedule 1.
“Default” has the meaning specified in the definition of “Event of Default”.
“Default Rate” has the meaning specified in Section 2.8.
“Dollars”, “dollars” or the symbol “$” means lawful money of the
United States of America denominated in United States dollars.
“Equity Interest” means: (a) if Borrower is a corporation, its capital stock; (b) if
Borrower is a limited liability company, its membership interests; or (c) if Borrower is a
partnership, its partnership interests.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Event of Default” means any of the events specified in Section 7.1, provided that
there has been satisfied any requirement in connection with such event for the giving of notice, or
the lapse of time, or the happening of any further condition, event or act, and “Default”
will mean any of such events, whether or not any such requirement has been satisfied.
“Extension Debt Service Coverage Ratio” means the Debt Service Coverage Ratio
recalculated to exclude from NOI any income from any Qualifying Lease which has a remaining term of
less than twenty-four (24) months from the Initial Maturity Date.
“Extension Request” has the meaning specified in Section 2.13.
“Extension Term” has the meaning specified in Section 2.13.
“Facility Fee” has the meaning specified in Section 2.2.
“Financial Covenant Parties” has the meaning specified in Schedule 1.
“GAAP” means generally accepted accounting principles applicable in the United States,
consistently applied.
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“Indebtedness” means, with respect to any Person: (a) all items of Indebtedness or
liability that would be included in determining total liabilities as shown on the liability side of
a balance sheet as of the date of determination; (b) Indebtedness secured by any Lien on property
carried on the asset side of the balance sheet of such Person whether or not such Indebtedness has
been assumed; (c) any other Indebtedness or liability for borrowed money or for the deferred
purchase price of property or services for which such Person is directly or contingently liable as
obligor, guarantor, or otherwise, or in respect of which such Person otherwise assures a creditor
against loss; and (d) any other obligations of such Person under leases that have been or, pursuant
to GAAP, should be recorded as capital leases.
“Indemnity” means that certain Certificate of Indemnity Regarding Hazardous Materials
dated as of the date hereof from Borrower and Lender, as the same may be modified, amended,
restated or replaced from time to time.
“Initial Maturity Date” has the meaning specified in Section 2.13.
“Insolvency Proceeding” means any proceeding commenced by or against any Person under
any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or
insolvency law, any assignment for the benefit of creditors, or any other proceeding seeking
reorganization, arrangement or other relief from Indebtedness.
“Interest Adjustment Date” has the meaning specified in Section 2.5.
“Interest Rate” has the meaning specified in Section 2.5.
“Legal Proceeding” has the meaning specified in Section 8.8.
“Lender’s Applicable Office” means the office of Lender principally responsible for
servicing the Loan, which initially will be the office at the address for notices to Lender shown
on Schedule 1.
“LIBOR Rate” has the meaning specified in Section 2.5.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including any agreement to give any of the foregoing, any conditional sale or other title
retention agreement, or any lease in the nature thereof).
“Loan” means the loan to be made pursuant to this Agreement.
“Loan Documents” means this Agreement, the Note, the Note Modification Agreement, the
Mortgage, the Indemnity, the Guaranty, if any, and all other documents, instruments and agreements
related thereto.
“Loan Parties” means Borrower, and, if Borrower is a partnership, Borrower’s general
partners.
“London Banking Day” has the meaning specified in Section 2.5.
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“Material Adverse Effect” means, as to any Person, any material adverse effect on:
(a) the business, assets, operations, capitalization, property, condition (financial or otherwise)
or prospects of such Person; or (b) the ability of such Person to pay and perform its obligations
as they become due, including, as to Borrower, all obligations of Borrower under the Loan
Documents.
“Maturity Date” means February ___, 2010, unless Lender’s obligation to make Advances
is earlier terminated pursuant to Section 7.2, in which case the Maturity Date will be such date of
earlier termination.
“Mortgage” means that certain mortgage described in, and amended and restated by, that
certain Mortgage Modification Agreement between Borrower and Lender dated as of the date hereof, as
the same may be modified, amended, restated or replaced from time to time.
“NOI” has the meaning specified in Schedule 2.
“Note” means the replacement promissory note payable to the order of Lender, delivered
pursuant to the Note Modification Agreement, evidencing the aggregate Indebtedness of Borrower to
Lender under this Agreement.
“Note Modification Agreement” means that certain Note Modification Agreement dated as
of the date hereof between Borrower and Lender.
“Person” means an individual, partnership, corporation (including a business trust),
joint stock company, limited liability company, trust, unincorporated association, joint venture or
other entity, or any governmental authority or entity.
“Property” has the meaning specified in the Mortgage.
“Qualifying Lease” means a bona fide arm’s-length lease of space in the Property to a
tenant unaffiliated with Borrower that is: (i) fully-executed; (ii) unmodified, in full force and
effect and not in default or subject to notice of termination; (iii) entered into in compliance
with all requirements contained in the Mortgage; (iv) with all tenant improvements completed and
paid for by Borrower, to the extent required by the lease; and (v) with the tenant in possession
pursuant to all requisite permits and government approvals and paying rent under the lease.
“Rent Roll” means a rent roll for the Property that: (i) shows the tenant name, leased
space (by unit number and floor and/or square footage, as applicable), expiration date, gross
monthly rent and other tenant charges for each lease of space in the Property; (ii) identifies each
listed lease as to whether it is an Qualifying Lease; (iii) is certified as true, complete and
correct by a representative of Borrower satisfactory to Lender; and (iv) is otherwise in form and
content satisfactory to Lender.
“Subsidiary” means any corporation, limited liability company, partnership or other
entity a majority of (a) the total combined voting power of all classes of Equity Interests of
which or (b) the outstanding Equity Interests of which are, as of the date of determination, owned
by Borrower either directly or through Subsidiaries.
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“Title Insurer” has the meaning specified in Section 3.1.
“Unused Commitment” means, as of any date of determination, an amount equal to the
Commitment minus the sum of: (a) the outstanding principal balance of the Loan, and (b) the
aggregate principal amount of Advances for which a Borrowing Request has been made pursuant to
Section 2.4 but which have not been disbursed as of the date of determination.
“Unused Fee” has the meaning specified in Section 2.2.
Section 1.2. Computation of Time Periods. In this Agreement, in the computation of
periods of time from a specified date to a later specified date: (a) the word “from” means “from
and including,” (b) the words “to” and “until” each means “to but excluding”; and (c) the word
“through” means “through and including”.
Section 1.3. Accounting Terms. All accounting terms not specifically defined in this
Agreement will be construed, and all accounting procedures will be performed, in accordance with
GAAP applicable as of the date of this Agreement.
ARTICLE II
AMOUNTS AND TERMS OF THE BORROWINGS
Section 2.1. The Commitment. Subject to the terms and conditions of this Agreement,
Lender will make available to Borrower a revolving credit facility in the maximum amount set forth
as the Commitment Amount in Schedule 1 (the “Commitment”), subject to reduction in
accordance with the terms and provisions of Schedule 2.
Section 2.2. Fees.
(a) On or before the earlier of the date of the first Advance or the 30th day after the date
of this Agreement, Borrower will pay to Lender a nonrefundable facility fee (the “Facility Fee”) in
the amount set forth in Schedule 1.
(b) Borrower shall, during the term of the Loan, pay to Lender a fee (the “Unused Fee”),
computed on the daily Unused Commitment for each day at a rate per annum equal to 0.0125% per
annum, calculated on the basis of a year of three hundred sixty (360) days for the actual number of
days elapsed. The accrued Unused Fee shall be due and payable quarterly in arrears on the first
day of January, April, July and October of each year commencing on July 1,
2007, and upon the Maturity Date (as stated, by acceleration or otherwise).
Section 2.3. The Borrowings.
(a) Lender agrees, on the terms and subject to the conditions set forth in this Agreement,
during the period from the date of this Agreement to the Maturity Date, to make Advances to
Borrower from time to time on any Business Day in an aggregate amount not to exceed the Unused
Commitment. Lender will have no obligation to make any Advances on or
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after the Maturity Date. Lender will have no obligation to make more than three Advances in
any calendar month.
(b) Each request for an Advance must be in an amount not less than $50,000 or an integral
multiple of $10,000 in excess thereof; provided, that Borrower may, subject to the other terms and
conditions of this Agreement, request an Advance in the amount of the entire Unused Commitment.
(c) Borrower may prepay all or any part of any the outstanding principal balance of the Loan
pursuant to Section 2.11 and reborrow pursuant to this Section 2.3.
Section 2.4. Procedure for Borrowings.
(a) Borrowing Requests. Each Borrowing Request will be made by Borrower to Lender not
later than 10:00 a.m. (prevailing local time at Lender’s Applicable Office) on the second Business
Day prior to the date of the proposed Borrowing. Each Borrowing Request will be made by an
Authorized Officer of Borrower by telecopy, e-mail or overnight courier delivery, in writing, on
the form of Borrowing Request attached as Exhibit A.
(b) Availability of Borrowings. Lender will make Borrowings available to Borrower in
immediately available funds to an account of Borrower with Lender, or such other account of
Borrower as may be approved by Lender.
Section 2.5. Interest Rate. The Note, the Loan and all amounts owing under this
Agreement and the other Loan Documents will bear interest at the rate provided in this Section 2.5
(the “Interest Rate”).
(a) Interest Rate Adjustments. The Interest Rate will be adjusted daily to the
Current Index (as defined below) plus the Applicable Margin.
(b) Definitions. As used in this Section 2.5, the following terms have the meanings
set forth below:
“Current Index” means, as of any date of determination, the LIBOR Rate figure
available on such day (or if such day is not a London Banking Day, on the most recent London
Banking Day) as of 11:00 a.m., London time.
“LIBOR Rate” means the rate, rounded to the nearest one-thousandth of one
percentage point (0.001%) for deposits in United States dollars for maturities of one month
as determined by Lender based upon the British Bankers Association fixing of the London
Interbank Offered Rate.
“London Banking Day” means any day (i) that is not a Saturday or Sunday and
(ii) on which commercial banks are generally open for business (including dealings in
foreign exchange and foreign currency deposits) in London, England and dealings are carried
on in the London interbank market.
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Section 2.6. Payment of Interest. Borrower will pay all accrued interest on the
outstanding principal amount of the Loan on the first day of each calendar month.
Section 2.7. Unavailability of LIBOR Rate. If in the sole judgment of Lender (a) it
becomes unlawful for Lender to obtain funds in the London interbank market or to continue to fund
or maintain principal amounts bearing interest at rates determined by reference to the LIBOR Rate;
or (b) because of conditions in the relevant money markets, the LIBOR Rate will not adequately
reflect the cost to Lender of making, funding or maintaining the principal amount of the Loan; or
(c) the LIBOR Rate is no longer available or is no longer calculated or reported on a basis
reasonably comparable to the basis on which it is calculated and reported on the date of this
Agreement, then, in any such event, Lender will choose a new index that reasonably reflects the
cost to Lender of making, funding or maintaining the principal amount of the Loan, and such new
index will then be the Index. Lender will give Borrower notice of such choice.
Section 2.8. Default Rate. Upon the occurrence of an Event of Default, and without
notice or demand, all amounts outstanding hereunder and under the Note and the other Loan
Documents, including all accrued but unpaid interest, will thereafter bear interest at a variable
rate, adjusted at the times at which the Interest Rate would otherwise have been adjusted pursuant
to Section 2.5, of five percent per annum above the Interest Rate that would have been applicable
from time to time had there been no Event of Default (the “Default Rate”) until all Events of
Default are cured. Failure to exercise any option granted to Lender hereunder will not waive the
right to exercise the same in the event of any subsequent Event of Default. Interest at the
Default Rate will commence to accrue upon the occurrence of any Event of Default, including the
failure to pay all sums outstanding hereunder and under the other Loan Documents at maturity.
Section 2.9. Maximum Interest. In no event will charges constituting interest payable
by Borrower to Lender exceed the maximum amount permitted under any applicable law or regulation,
and if any payments by Borrower exceed such maximum amount, the excess will be applied first to
reduce the amounts owing to Lender under this Agreement and the other Loan Documents in such order
as Lender may elect, next to reduce any other amounts owing by Borrower to Lender in such order as
Lender may elect, and any excess will be refunded to Borrower.
Section 2.10. Late Charge. If any amount payable under this Agreement, the Note or
the other Loan Documents is not paid within fifteen (15) days after the due date thereof, Borrower
will pay a late charge of five percent of the delinquent amount as liquidated damages for the extra
expense in handling past due payments. Any late charge payable under this Section is in addition
to any interest payable at the Default Rate.
Section 2.11. Prepayments. Borrower may prepay the outstanding principal balance of
the Loan in full or in part without premium or penalty at any time and from time to time.
Section 2.12. Reduction of Balance to Zero. Borrower will reduce the balance of
principal and all other amounts outstanding under this Agreement to zero for not less than thirty
(30) consecutive days at least once during each successive 364-day period during which this
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Agreement remains in effect starting with the 364-day period beginning on the date of this
Agreement.
Section 2.13. Maturity; Extension of Maturity Date.
(a) Maturity. Borrower will repay all remaining unpaid principal of and interest on
the Loan on or before the Maturity Date.
(b) Extension. Borrower may request that Lender extend the Maturity Date of this
Note (the “Initial Maturity Date”) for one (1) (but only one) twenty-four (24) month period (the
“Extension Term”) by giving Lender notice of such request (an “Extension Request”) to so extend at
least thirty (30) days but not more than sixty (60) days prior to the Initial Maturity Date. The
date of such request is referred to as the “Request Date”. Borrower may extend the Initial
Maturity Date as provided above only upon satisfaction of the following conditions:
(i) There shall be an Extension Debt Service Coverage Ratio of at least 1.2 to 1.0;
(ii) Not less than eighty-nine percent (89%) net rentable square feet of the Property
must be leased under Qualifying Leases as of the Request Date; and
(iii) A current estoppel certificate in the form executed and delivered by Borrower
showing no adverse information (which, if required by Lender, must be dated within ten (10)
days prior to the Initial Maturity Date).
(c) Rent Roll. Borrower must deliver to Lender with the Extension Request (i) a Rent
Roll current as of the Request Date; (ii) copies of all Qualifying Leases listed on that Rent Roll;
and (iii) such further supporting information as Lender may reasonably require.
(d) Payment of Costs. Borrower must have paid to Lender all of Lender’s costs and
expenses incurred in connection with the extension of the Initial Maturity Date, including but not
limited to attorneys’ fees, if any, or must have arranged for such payment to Lender’s
satisfaction.
(e) Absence of Default or Adverse Change. As of the Request Date: (a) no Default or
Event of Default shall exist; (b) no material adverse change in the financial condition or the
management of the Property, Borrower or any guarantor of the Loan shall have occurred since the
date hereof; and (c) no material adverse change shall have occurred with respect to the Property.
Borrower must so certify in writing if requested by Lender.
Section 2.14. Evidence of Indebtedness. The Advances made by Lender to Borrower will
be evidenced by the Note, payable to the order of Lender. Lender may maintain in accordance with
its usual practice an account or accounts evidencing the Indebtedness of Borrower resulting from
Advances and payments made from time to time under this Agreement. In any legal action or
proceeding in respect of this Agreement or the Note, the entries made in such account or accounts
will be presumptive evidence of the existence and amounts of the obligations of Borrower therein
recorded absent manifest error.
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Section 2.15. Illegality. Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or regulation will make it
unlawful, or any central bank or other governmental authority will assert that it is unlawful, for
Lender to perform its obligations under this Agreement to make or maintain Advances, Lender may, by
notice to Borrower, suspend the right of Borrower to elect such Advances and, if necessary in the
reasonable opinion of Lender to comply with such law or regulation, Borrower will prepay the
outstanding balance of principal and other sums owed to Lender under this Agreement and under the
other Loan Documents at the latest time permitted by the applicable law or regulation or, if
earlier, on the date such amounts are due and payable under the terms of this Agreement and the
other Loan Documents.
ARTICLE III
CONDITIONS OF BORROWING
Section 3.1. Conditions Precedent to Initial Advance. The obligation of Lender to
make the initial Advance is subject to satisfaction by Borrower of the following conditions
precedent:
(a) Lender must have received the following documents in form and substance satisfactory to
Lender and, as appropriate, duly executed by the parties thereto:
(i) This Agreement, the Mortgage, the Indemnity, the Note and all other applicable Loan
Documents;
(ii) Copies of such authorizing resolutions of Borrower and its constituent entities,
if any, as Lender may require with respect to the Loan and the Loan Documents;
(iii) One or more certificates of such Person or Persons on behalf of Borrower and its
constituent entities, if any, as Lender may require certifying: (A) the names and true
signatures of the officers or other representatives of the applicable entity authorized to
sign the Loan Documents; (B) that true and correct copies of the organizational documents of
the applicable entities are attached to such certificate or certificates; and (C) such other
matters as Lender may require;
(iv) Current financial statements of Borrower and with respect to the Property and such
other financial data as Lender shall require;
(v) 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;
(vi) The policies of insurance required by the Mortgage, together with evidence of the
payment of the premiums therefor;
(vii) 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
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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;
(viii) 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 Lender, issued by a title insurance
company reasonably acceptable to Lender (the “Title Insurer”) which shall insure the
Mortgage to be a valid lien on Borrower’s interest in the Property free and clear of all
defects and encumbrances except those previously received and approved by Lender, 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 Lender, (iii) such
affirmative insurance and endorsements as Lender 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 Lender, redating the policy and setting forth no additional exceptions
except those approved by Lender’s Counsel (a “Date Down Endorsement”); 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;
(ix) An as-built survey of the Property, certified to Lender and the Title Insurer;
(x) Certified copies of all leases in respect of the Property and an estoppel regarding
lease matters from each tenant or from Borrower;
(xi) Opinions of Borrower’s counsel and local counsel to the effects reasonably
required by Lender; Borrower hereby acknowledges that each of its counsel delivering opinion
letters to Lender on or about the date hereof has been requested and directed by Borrower to
do so;
(xii) Copies of the certificate(s) of occupancy for the Property 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 for their intended purposes
in accordance with all applicable laws;
(xiii) UCC, judgment and litigation searches against Borrower and advice from the Title
Insurer to the effect that searches of proper public records disclose no materially adverse
matters, leases of personalty or financing statements filed or recorded against the
Mortgaged Property or Borrower; and
(xiv) Such other documents as Lender may require;
(b) Payment of all fees due and payable pursuant to Section 2.2.
(c) The representations and warranties made to Lender herein, in the other Loan Documents and
in any other document, certificate or statement executed or delivered to
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Lender 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.
(d) The Property shall not have been materially injured or damaged by fire or other casualty.
(e) Such other conditions precedent as Lender may reasonably require.
Section 3.2. Conditions Precedent to Each Advance. The obligation of Lender to make
each Advance (including but not limited to the initial Advance) will be subject to the further
conditions precedent that, on the date of such Advance, before and immediately after giving effect
thereto, the following statements must be true and correct, and the making by Borrower of the
applicable Borrowing Request will constitute Borrower’s representation and warranty that on and as
of the date of such Borrowing Request and as of the date of the requested Borrowing, before and
immediately after giving effect thereto, the following statements are and will be true and
correct:
(i) Lender shall have received a Date Down Endorsement from the Title Insurer effective
as of the date of the Advance;
(ii) The representations and warranties contained in Article IV of this Agreement are
and will be true and correct in all material respects as though made on and as of such date,
unless such representations and warranties are expressly stated to be made as of an earlier
date;
(iii) There shall have occurred no material adverse change in the condition or value of
the Property, as defined in the Mortgage;
(iv) After giving effect to the requested Advance, the Unused Commitment will not be
less than zero;
(v) No event has occurred and is continuing or would result from the requested Advance
that constitutes or would constitute a Default or an Event of Default;
(vi) The most recent financial statements delivered to Lender pursuant to Section 5.3
present fairly the financial position and results of operations of Borrower and the other
Persons reported therein as of the date of, and for the periods presented in, such financial
statements, and since the date of such financial statements there has not been any material
adverse change in the financial condition or operations of Borrower or the other Persons
reported therein; and
(vii) Borrower is and will be in compliance with all covenants contained in Articles V
and VI of this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender as follows:
Section 4.1. Organization. Borrower is duly organized and validly existing under the
laws of the jurisdiction of its organization. Borrower has full power and authority to own its
properties and to transact the businesses in which it is presently engaged or presently proposes to
engage. Borrower is duly qualified to do business and is in good standing in all jurisdictions in
which the failure so to qualify could reasonably be expected to have a Material Adverse Effect.
Section 4.2. Authorization; No Breach. The execution, delivery, and performance of
this Agreement and the other Loan Documents by Borrower, to the extent to be executed, delivered or
performed by Borrower, have been duly authorized by all necessary corporate, limited liability
company, partnership or similar action, as applicable; do not require the consent or approval of
any other Person, regulatory authority or governmental body; and do not conflict with, result in a
violation of, or constitute a default under (a) any provision of Borrower’s organizational
documents, or any agreement or other instrument binding upon Borrower or (b) any law, governmental
regulation, court decree, or order applicable to Borrower.
Section 4.3. Financial Information. Each financial statement of Borrower or any other
Person supplied to Lender in connection with the Loan truly and completely disclosed Borrower’s or
such other Person’s financial condition as of the date of the statement, and there has been no
material adverse change in such financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Neither Borrower nor any such other Person has any
material contingent obligation except as disclosed in such financial statements or in footnotes
thereto or otherwise disclosed to Lender in writing.
Section 4.4. Legal Effect. This Agreement and the other Loan Documents constitute
legal, valid and binding obligations of Borrower and the other parties thereto (other than Lender)
enforceable against Borrower and such other parties in accordance with their respective terms,
subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally
and to general principles of equity (whether considered in a proceeding at law or in equity).
Section 4.5. Compliance with Law. Borrower, the other Loan Parties, and the
properties and activities of each thereof, are in compliance with all applicable laws, rules,
regulations and court and administrative orders, except to the extent that failure so to comply
could not reasonably be expected to have a Material Adverse Effect.
Section 4.6. Hazardous Substances. Borrower, each other Loan Party and the properties
of each thereof comply in all material respects with all applicable laws and regulations relating
to the environment, including without limitation, all laws and regulations relating to pollution
and environmental control.
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Section 4.7. Litigation and Claims. No litigation, claim, investigation,
administrative proceeding or similar action (including those for unpaid taxes) against Borrower or
any other Loan Party is pending or threatened, and no other event has occurred that could
reasonably be expected to have a Material Adverse Effect.
Section 4.8. Taxes. All tax returns and reports of Borrower and each other Loan Party
that are required to have been filed, have been filed, and all taxes, assessments and other
governmental charges that have become due and payable by Borrower or any other Loan Party have been
paid in full, except those presently being, or promptly to be, contested in good faith, by
appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP.
Section 4.9. Employee Benefit Plans. Each employee benefit plan as to which Borrower
or any other Loan Party may have any liability complies in all material respects with all
applicable requirements of law and regulations, and (a) no reportable event or prohibited
transaction (each as defined in ERISA) has occurred with respect to any such plan, (b) neither
Borrower nor any other Loan Party has withdrawn from any such plan or initiated steps to do so, (c)
no steps have been taken to terminate any such plan, and (d) there are no unfunded liabilities in
connection with any such plan.
Section 4.10. Regulated Entities. None of Borrower, any Person controlling Borrower,
or any Subsidiary is an “Investment Company” within the meaning of the Investment Company Act of
1940, or subject to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, any state public utilities code, or any other federal or state statute or regulation
limiting its ability to incur or guarantee Indebtedness.
Section 4.11. Information. All information furnished by Borrower or any other Loan
Party to Lender in connection with this Agreement or any transaction contemplated hereby is, and
all information hereafter furnished by or on behalf of Borrower or any other Loan Party to Lender
will be, true and accurate in every material respect on the date as of which such information is
dated or certified; and none of such information is or will be incomplete by omitting to state any
material fact necessary to make such information not misleading.
Section 4.12. Survival of Representations and Warranties. Borrower understands and
agrees that Lender, without independent investigation, is relying upon the above representations
and warranties in entering into this Agreement and the other Loan Documents. Such representations
and warranties will be continuing in nature and will remain true and correct until all of
Borrower’s Indebtedness under this Agreement has been paid in full, and Lender’s Commitment to make
Advances under this Agreement has been permanently terminated in writing.
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ARTICLE V
AFFIRMATIVE COVENANTS
So long as the Note or any other amount payable by Borrower under the Loan Documents remains
unpaid or Lender has any Commitment to make Advances under this Agreement, Borrower covenants and
agrees that it will:
Section 5.1. Changes in Financial Condition; Litigation. Promptly inform Lender in
writing of (a) all material adverse changes in the financial condition of any Financial Covenant
Party, and (b) all existing and all threatened litigation, claims, investigations, administrative
proceedings or similar actions affecting any Financial Covenant Party that could reasonably be
expected to have a Material Adverse Effect.
Section 5.2. Financial Records. Cause the books and records of each Financial
Covenant Party to be maintained in accordance with GAAP.
Section 5.3. Reporting Requirements. Deliver to Lender the financial statements, tax
returns and other items required under the Mortgage.
Section 5.4. Other Agreements. Comply in all material respects with all terms and
conditions of all other agreements, whether now or hereafter existing, between Borrower and any
other Person and notify Lender immediately in writing of any default in connection with any such
agreement that could reasonably be expected to have a Material Adverse Effect.
Section 5.5. Executive Personnel. Maintain, and cause each Financial Covenant Party
to maintain, executive and management personnel with substantially the same qualifications and
experience as its present executive and management personnel.
Section 5.6. Compliance With Law. Conduct, and cause each Financial Covenant Party to
conduct, its business affairs in a reasonable and prudent manner and in compliance with all
applicable laws, ordinances, rules, regulations and court and administrative orders, except to the
extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 5.7. Inspection. Permit, and cause each Financial Covenants Party to permit,
employees or agents of Lender at any reasonable time to inspect any and all of its properties and
to examine or audit its books, accounts, and records (including any thereof held by third parties)
and to make copies and memoranda of its books, accounts, and records.
Section 5.8. Existence. Preserve and keep in full force and effect the corporate,
limited liability company or partnership existence, as the case may be, of Borrower and each other
Financial Covenant Party, and qualify to do business in each jurisdiction where the failure so to
qualify could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Maintenance of Insurance. Maintain, and cause each other Financial
Covenant Party to maintain, insurance with financially sound and reputable insurers in such amounts
and covering such risks as are customarily carried by Persons engaged in
14
businesses and activities similar to those of Borrower and the other Financial Covenant
Parties and otherwise similarly situated.
Section 5.10. Use of Proceeds. Use the proceeds of the Borrowings only for general
business and commercial purposes and not use any thereof, directly or indirectly: (a) for any
personal, family or household purpose; (b) to purchase or carry any margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System); (c) to extend
credit to others for the purpose of purchasing or carrying any margin stock; or (d) for any purpose
that violates, or is inconsistent with, the provisions of Regulations U, T or X of the Board of
Governors of the Federal Reserve System.
Section 5.11. Information for Participants, Etc.; Publicity. Borrower agrees to
furnish such information and confirmation as may be required from time to time by Lender on request
of potential loan participants and assignees and agrees to make adjustments in the Loan Documents
to accommodate such participants’ or assignees’ requirements, provided that such adjustments do not
vary the economic terms of the credit extensions under this Agreement or increase in any material
way the obligations of Borrower or any other Loan Party. Borrower hereby authorizes Lender to
disclose to potential participants and assignees any information in Lender’s possession with
respect to Loan, Borrower and the other Loan Parties and Financial Covenant Parties.
Section 5.12. Additional Assurances. Make, execute and deliver to Lender such
promissory notes, instruments, documents and other agreements as Lender may reasonably request to
evidence the Borrowings and otherwise to carry out the purpose and intent of this Agreement.
ARTICLE VI
NEGATIVE COVENANTS
So long as the Note or any other amount payable by Borrower under the Loan Documents remains
unpaid or Lender has any Commitment to make Advances under this Agreement, Borrower covenants and
agrees that it will not, and will not permit any Financial Covenant Party to:
Section 6.1. Business Activities. Engage in any business activities of a type
substantially different from those in which it is currently engaged.
Section 6.2. Loans and Guaranties. (a) Lend or advance money to any other Person,
except (i) commercial bank demand deposits and time deposits maturing within one year, (ii)
marketable general obligations of the United States or a state thereof or marketable obligations
fully guaranteed by the United States, (iii) short-term commercial paper with the highest rating of
a generally recognized rating service, (iv) loans and advances to employees or other Loan Parties
or Financial Covenant Parties in the ordinary course of business related to expenses incurred in
the ordinary course of business, (v) other loans in the ordinary course of business not to
exceed $35,000,000 in any single transaction or series of related transactions and not to exceed
$100,000,000 in the aggregate at any one time and (vi) other investments
15
reasonably acceptable to Lender; or (b) incur any obligation as surety or guarantor other than
in the ordinary course of business.
Section 6.3. Dividends and Distributions. Directly or indirectly declare or pay any
dividends or purchase, redeem, retire or otherwise acquire for value any of its Equity Interests,
or make any distribution of assets to holders of any of its Equity Interest as such whether in
cash, assets or obligations of Borrower if a Default exists or if the same would result in the
occurrence of a Default or would cause a violation of any financial covenant set forth in
Schedule 2 if such financial covenant were to be tested immediately after such action,
provided, however, that notwithstanding the foregoing, this Section 6.3 shall not prohibit Borrower
from making any dividends to the extent dividends are necessary for Borrower to maintain its status
as a Real Estate Investment Trust for federal income taxation purposes.
Section 6.4. Liquidation, Merger, Sale of Assets. Liquidate, cease operations,
dissolve or enter into any merger, consolidation or other combination nor sell, lease, or dispose
of all or substantially all of its business or assets nor transfer or sell assets except transfers,
sales or dispositions of personal property assets that are obsolete or worn out property disposed
of in the ordinary course of business.
Section 6.5. Transactions with Affiliates. Directly or indirectly engage in any
transaction (including, without limitation, the purchase, sale or exchange of assets or the
rendering of any service) with any Affiliate of Borrower or a Financial Covenant Party except in
the ordinary course, and pursuant to the reasonable requirements, of Borrower’s or such Financial
Covenant Party’s business and upon fair and reasonable terms that are no less favorable to Borrower
or such Financial Covenant Party than those that might be obtained in an arm’s-length transaction
at the time from parties that are not Affiliates.
Section 6.6. Financial Covenants. Permit the Financial Covenant Parties to be out of
compliance with the financial covenants set forth in Schedule 2.
ARTICLE VII
DEFAULT AND REMEDIES
Section 7.1. Events of Default. Each of the following events will constitute an event
of default (“Event of Default”) under this Agreement:
(a) Default on Indebtedness to Lender. Any regular monthly payment under this
Agreement is not paid so that it is received by Lender within ten (10) days after the date when
due, or any other amount payable pursuant to this Agreement or the other Loan Documents (including
but not limited to any payment of principal or interest due on the Maturity Date) is not paid so
that it is received by Lender when due.
(b) Covenant Default.
(i) Violation of any of the covenants contained in Article VI of this Agreement, or
16
(ii) Failure by Borrower or any Affiliate of Borrower to perform, keep, or observe any
other material term, provision, condition, covenant, or agreement contained in this
Agreement, in the Mortgage, any of the other Loan Documents, or in any other present or
future agreement between Borrower or such Affiliate on the one hand and Lender or any
Affiliate of Lender on the other hand, and as to any such failure that can be cured and does
not pose an imminent risk of loss to Lender, the failure of Borrower or such Affiliate to
cure such Default within thirty (30) days after Borrower receives written notice thereof
from Lender or after any officer, member, manager or partner of Borrower or such Affiliate
becomes aware thereof; provided, however, that if the Default cannot by its nature be cured
within the thirty (30) day period or cannot after diligent attempts by Borrower or such
Affiliate be cured within such thirty (30) day period, and such Default is likely to be
cured within a reasonable time, then Borrower or such Affiliate will have an additional
reasonable period (which will not in any case exceed an additional thirty (30) days) to
attempt to cure such failure, and within such reasonable time period the failure to have
cured such failure will not be deemed an Event of Default (provided that Lender will have no
obligation to make Advances during such cure period).
(c) Material Adverse Change. If there occurs a material adverse change in the
business or financial condition of Borrower or any other Loan Party or Financial Covenant Party, or
if there is a material impairment of the prospect of repayment of any portion of the Indebtedness
owing by Borrower under this Agreement and the other Loan Documents.
(d) Certain Legal Matters. If (i) any material portion of the assets of any Loan
Party or Financial Covenant Party is attached, seized, subjected to a writ or distress warrant, or
is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar
capacity for such Loan Party or Financial Covenant Party or the assets thereof, and such
attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded
within ten (10) days, or (ii) a Loan Party or Financial Covenant Party is enjoined, restrained, or
in any way prevented by court order from continuing to conduct all or any material part of its
business affairs, or (iii) a judgment or other claim becomes a Lien upon any material portion of
the assets of a Loan Party or Financial Covenant Party, or if a notice of lien, levy, or assessment
is filed of record with respect to any of the assets of a Loan Party or Financial Covenant Party by
the United States Government, or any department, agency, or instrumentality thereof, or by any
state, county, municipal, or governmental agency, and the same is not paid within ten (10) days
after Borrower or the applicable Loan Party or Financial Covenant Party receives notice thereof;
provided, however, that none of the foregoing will constitute an Event of Default where such action
or event is stayed or an adequate bond has been posted pending a good faith contest by Borrower or
the applicable Loan Party or Financial Covenant Party (provided further that no Advances will be
required to be made during such cure period).
(e) Insolvency. If (i) any Loan Party or Financial Covenant Party becomes insolvent,
(ii) an Insolvency Proceeding is commenced by any Loan Party or Financial Covenant Party, or (iii)
an Insolvency Proceeding is commenced against any Loan Party or Financial Covenant Party and is not
dismissed or stayed within sixty (60) days (provided that no Advances will be made prior to the
dismissal of such Insolvency Proceeding).
17
(f) Other Agreements. If (i) there is an Event of Default under the Mortgage, there
is a default under any agreement to which any Loan Party or Financial Covenant Party is a party
with Lender and such default is not cured within the applicable cure period, if any, under such
agreement, or (ii) there is a default under any agreement to which any Loan Party or Financial
Covenant Party is a party with a third party resulting in a right by such third party, whether or
not exercised, to accelerate the maturity of any Indebtedness in an amount in excess of $100,000.
(g) Judgments. If a judgment or judgments for the payment of money in an amount,
individually or in the aggregate, of $1,000,000 or more will be rendered against any Loan
Party or Financial Covenant Party and will remain unsatisfied and unstayed for a period of
forty-five (45) days.
(h) Misrepresentations. If any material misrepresentation or material misstatement
now or hereafter exists in any representation or warranty set forth in this Agreement, the Mortgage
or in any certificate or Borrowing Request submitted to Lender in connection with the Loan.
(i) Full Force and Effect, Defective Documentation, Etc. If this Agreement or any of
the other Loan Documents ceases to be in full force and effect, at any time and for any reason, or
Borrower or any other Loan Party repudiates any Loan Document or asserts that any Loan Document is
not in full force and effect.
Section 7.2. Remedies. At any time after the occurrence and during the continuance of
an Event of Default, Lender may, by notice to Borrower, (a) declare the obligation of Lender to
make Advances to be terminated, whereupon the same will forthwith terminate, (b) exercise any and
all rights and remedies provided in the Mortgage and (c) declare (i) the Note and all interest
thereon and (ii) all other amounts payable under this Agreement and the other Loan Documents to be
immediately due and payable, whereupon the Note, all such interest, and all such other amounts will
become and be immediately due and payable, without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by Borrower; provided, however, that if an
Insolvency Proceeding by or against Borrower is commenced, (A) the obligation of Lender to make
Advances will automatically be terminated and (B) the Note, all interest thereon, and all other
amounts payable under this Agreement and the other Loan Documents will automatically become and be
immediately due and payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by Borrower.
Section 7.3. Right of Offset. After the occurrence and during the continuance of an
Event of Default, Lender and its Affiliates are hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other Indebtedness at any time
owing by Lender or its Affiliates to or for the credit or the account of Borrower or any other Loan
Party against any and all of the obligations of Borrower or any other Loan Party now or hereafter
existing under this Agreement and the other Loan Documents irrespective of whether Lender has made
any demand. The rights of Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of offset) that Lender may have.
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Section 7.4. Cumulative Remedies. After the occurrence and during the continuance of
an Event of Default, Lender may proceed to enforce the Loan Documents by exercising such remedies
as are available thereunder or in respect thereof under applicable law, whether for specific
performance of any covenant or other agreement contained in the Loan Documents or in aid of the
exercise of any power granted in the Loan Documents. No remedy conferred in this Agreement or the
other Loan Documents is intended to be exclusive of any other remedy, and each and every such
remedy will be cumulative and will be in addition to every other remedy conferred herein or therein
or now or hereafter existing at law, in equity, by statute or otherwise.
Section 7.5. Application of Payments. After the occurrence and during the continuance
of an Event of Default, Lender will apply all funds received in respect of amounts owing under this
Agreement and the other Loan Documents in such order as Lender may determine in its sole discretion
notwithstanding any instruction from Borrower or any other Person.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Amendments. An amendment or waiver of any provision of this Agreement or
the other Loan Documents, or a consent to any departure therefrom, will be effective against Lender
if, but only if, it is in writing and signed by Lender, and then such a waiver or consent will be
effective only in the specific instance and for the specific purpose for which given.
Section 8.2. Notices. Except as otherwise specifically provided in this Agreement,
all notices and other communications provided for under this Agreement must be in writing and
mailed, telecopied or otherwise transmitted or delivered to the recipient at its address as set
forth in Schedule 1; or at such other address within the United States as may be designated
by such party in a written notice to the other party or parties. All such notices and
communications will, (a) if mailed, be effective three (3) Business Days following deposit in the
United States mail, postage prepaid; (b) if delivered by recognized overnight delivery service
(such as Federal Express) be effective upon delivery and (c) if telecopied, be effective when
telecopied and electronic confirmation of transmission is received, except that notices and
communications to Lender pursuant to Article II will not be effective until received by Lender.
Section 8.3. No Waiver; Remedies. No failure on the part of Lender to exercise, and
no delay in exercising, any right under this Agreement or any other Loan Document will operate as a
waiver thereof; nor will any single or partial exercise of any right hereunder or under any other
Loan Document preclude any other or further exercise thereof or the exercise of any other right.
The remedies provided in this Agreement and the other Loan Documents are cumulative and not
exclusive of any remedies provided by law.
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Section 8.4. Costs and Expenses; Indemnification.
(a) Costs of Preparation and Administration of Loan Documents. Whether or not the
transactions provided for in this Agreement are consummated, Borrower will pay on demand: (i) the
reasonable fees and out-of-pocket expenses of counsel for Lender in connection with the
preparation, execution and delivery of this Agreement and the other Loan Documents and any
amendments or modifications thereof or waivers or consents with respect thereto; (ii) any and all
out-of-pocket costs and expenses reasonably incurred by Lender in connection with the execution and
delivery of this Agreement and the other Loan Documents and the administration thereof.
(b) Costs of Enforcement. In the event of any Default or Event of Default, or in the
event that any dispute arises (whether or not such dispute is with Borrower) relating to the
interpretation, enforcement or performance of this Agreement or any of the other Loan Documents, or
Lender’s rights thereunder, Lender will be entitled to collect from Borrower on demand all
reasonable fees and expenses incurred in connection therewith, including but not limited to fees of
attorneys, paralegals, accountants, expert witnesses, arbitrators, mediators and court reporters.
Without limiting the generality of the foregoing, Borrower will pay all such costs and expenses
incurred in connection with: (i) arbitration or other alternative dispute resolution proceedings,
trial court actions and appeals; (ii) bankruptcy or other Insolvency Proceedings of Borrower, any
other Loan Party, or any party having any interest in any security for the Loan (if any); (iii)
judicial or nonjudicial foreclosure on, or appointment of a receiver for, any property securing the
Loan (if any); (iv) post-judgment collection proceedings; (v) all claims, counterclaims,
cross-claims and defenses asserted in any of the foregoing whether or not they arise out of or are
related to this Agreement or any other Loan Document; (vi) all preparation for any of the
foregoing; and (vii) all settlement negotiations with respect to any of the foregoing.
(c) Survival. The provisions of this Section 8.4 will survive the termination of the
commitment to lend under this Agreement and the repayment of the Loan and all other amounts payable
under the Loan Documents.
Section 8.5. Binding Effect; Assignments and Participations. This Agreement will
become effective when it has been executed by Borrower and Lender and thereafter will be binding
upon and inure to the benefit of Borrower and Lender and their respective successors and assigns,
except that Borrower will not have the right to assign its rights under this Agreement or any
interest herein without the prior written consent of Lender. Lender may assign or grant
participations in or to all or any part of its rights and obligations under this Agreement and the
other Loan Documents.
Section 8.6. Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of which when so executed
will be deemed to be an original and all of which taken together will constitute one and the same
agreement.
20
Section 8.7. Governing Law. This Agreement will be governed by, and construed and
enforced in accordance with, the laws of the State of New Jersey, without reference to the
choice of law principles of the State of New Jersey.
Section 8.8. Jurisdiction and Venue.
(a) WAIVER OF JURY TRIAL. EACH OF BORROWER AND LENDER (FOR ITSELF AND ITS SUCCESSORS,
ASSIGNS AND PARTICIPANTS) WAIVES ITS RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
PROVIDED FOR HEREIN OR THEREIN, IN ANY LEGAL ACTION OR PROCEEDING OF ANY TYPE BROUGHT BY ANY PARTY
TO ANY OF THE FOREGOING AGAINST ANY OTHER SUCH PARTY, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. ANY SUCH CLAIM OR CAUSE OF ACTION WILL BE TRIED BY A COURT SITTING WITHOUT A JURY.
(b) Application to Certain Actions. Without limiting the foregoing, the provisions of
the above Subsection (a) will apply to any action, counterclaim or other proceeding that seeks, in
whole or in part, to challenge the validity or enforceability of this Agreement or the other Loan
Documents or any provision hereof or thereof. Such subsection will apply to all amendments,
renewals, supplements and modifications of this Agreement and the other Loan Documents.
Section 8.9. Further Assurances. If Lender at any time discovers that this
Agreement, the Note or any other Loan Documents contains any error that was caused by a clerical
mistake, calculation error, computer error, printing error or similar error, Borrower shall, upon
demand by Lender re-execute any such documents as are necessary or appropriate to correct any such
error and Lender shall have no liability to Borrower or any other person or entity as a result of
such error. If the Note is lost, stolen, mutilated or destroyed and Lender delivers to Borrower an
indemnification agreement reasonably indemnifying Borrower against any loss or liability resulting
therefrom, Borrower will execute and deliver to Lender a replacement thereof in form and content
identical to the original document which will have the effect of the original for all purposes.
Section 8.10. No Fiduciary Duty. Borrower acknowledges that Lender has no fiduciary
relationship with, or fiduciary duty to, Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between Lender and Borrower in
connection herewith or therewith is solely that of creditor and debtor. None of this Agreement or
the other Loan Documents create a joint venture among the parties.
Section 8.11. Severability. Any provision of the Loan Documents that is prohibited or
unenforceable in any jurisdiction will be ineffective to the extent of such prohibition or
unenforceability in such jurisdiction without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other jurisdiction. To the
extent permitted by applicable law, the parties waive any provision of law that renders any
21
provision of this Agreement or any other Loan Document prohibited or unenforceable in any
respect.
Section 8.12. Entire Agreement. This Agreement and the other Loan Documents
constitute the final and complete expression of the parties with respect to the transactions
contemplated by this Agreement and replace and supersede all prior discussions, negotiations and
understandings with respect thereto. Neither this Agreement nor any term hereof nor of the other
Loan Documents may be changed, waived, discharged or terminated except as provided herein.
Section 8.13. Descriptive Headings. The descriptive headings of the various
provisions of this Agreement are for convenience of reference only, do not constitute a part
hereof, and will not affect the meaning or construction of any provision hereof.
Section 8.14. Gender and Number. Whenever appropriate to the meaning of this
Agreement or the other Loan Documents, use of the singular will be deemed to refer to the plural,
the use of the plural to the singular, and pronouns of certain gender to either or both the other
genders.
Section 8.15. Prior Agreement Amended and Restated. This Agreement amends and
restates the following agreement in its entirety: Term Loan Agreement dated March 30, 2000 by and
between The Dime Savings Bank of New York, FSB and Borrower, as modified by that certain Term Loan
Modification Agreement dated as of March 26, 2004 by and between Washington Mutual Bank, FA,
successor by merger to The Dime Savings Bank of New York, FSB, and Borrower.
Section 8.16. Non-Recourse/Limited Liability.
(a) Any other provision of this Agreement, the Note or the Mortgage seemingly to
the contrary notwithstanding, it is understood and agreed that, except as provided in this Section
8.16, the Property shall be the sole recourse of Lender in the event of an Event of Default and
that the liability of Borrower (and, if Borrower is a partnership, its partners) for any amounts
due under this Agreement, the Note and/or under the Mortgage is limited to the interest of Borrower
or its partners in the Property.
(b)
Lender may join Borrower (and, if Borrower is a partnership, its partners) as
defendants in any legal action it undertakes to enforce its rights and remedies under this
Agreement, the Note or under any of the Mortgage, provided that except as otherwise provided in the
immediately succeeding paragraph, any judgment in such action may be satisfied by recourse only to
the Property and not by recourse directly to Borrower or its partners or by execution on other
property or assets of Borrower or its partners.
(c)
The foregoing notwithstanding, Lender shall have full recourse against
Borrower (and, if Borrower is a partnership, its general partners) and such general partners shall
be jointly and severally liable with Borrower and with one another for the full payment of: (i)
the amount of any income, proceeds or profits (including rents) of the Property and any funds
constituting a part of the Property that are, at the time of receipt, required for the payment of
operating expenses for the Property (including the establishment of a reasonable reserve for this
22
purpose) and/or the payment of amounts that are then due and payable under this Agreement
or the Note and that are not so used; (ii) any condemnation or insurance proceeds, or other similar
funds or payments attributable to the Property, that under the terms of the Mortgage should have
been paid to Lender but that have not been so paid to Lender; (iii) any tenant security deposits,
advances or prepaid rents, or other similar sums that have been paid to Borrower or held for the
account of Borrower by any other person or entity in connection with the operation of the Property
and that have not either been applied or refunded in accordance with the relevant lease or been
paid over to Lender; (iv) the amount of any loss suffered by Lender as a result of
misrepresentations or fraud by or on behalf of Borrower in connection with the loan evidenced by
the Note; (v) the amount of any loss suffered by Lender as a result of waste or gross mismanagement
by or permitted by Borrower; (vi) the amount of any loss suffered by Lender as a result of
violations of any governmental statute, rule or regulation applicable to the Property, but
specifically excluding any loss suffered by Lender arising directly or indirectly from the presence
or release of any hazardous or toxic substance, material or waste on the Property or Costs (as
defined in the separate certificate and indemnity agreement regarding hazardous substances of even
date herewith (the “Indemnity Agreement”) executed and delivered by Borrower to Lender); (vii) the
amount of any loss suffered by Lender as a result of any Unconsented Transfer (as defined in the
Security Instrument) or as a result of any attempt by or on behalf of Borrower to hinder, delay or
defeat Lender’s realization on its security for this Agreement or the Note after the occurrence and
during the continuance of an Event of Default (including without limitation the filing of any
bankruptcy or insolvency proceeding or action to enjoin foreclosure); (viii) interest on the
amounts described in clauses (i) through (ix) of this paragraph at the Default Rate; and (ix)
reasonable attorneys’ fees and other costs incurred by Lender in collecting any of the
foregoing.
(d)In addition, nothing contained in this Section 8.16 shall: (i) be deemed to
be a release or impairment of the lien created by the Mortgage; or (ii) limit or otherwise
prejudice in any way the rights of Lender to enforce any of its rights and remedies under any of
the Mortgage, the Indemnity Agreement or any guaranty of the indebtedness evidenced by this
Agreement or the Note.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the
day and year first above written.
| ACADIA REALTY LIMITED PARTNERSHIP, a Delaware limited partnership |
||||||||
| By: | Acadia Realty Trust, a Maryland real estate investment trust, its general partner |
|||||||
| By | ||||||||
| Xxxxxx Xxxxxxx | ||||||||
| Senior Vice President | ||||||||
| LENDER: | ||||||
| WASHINGTON MUTUAL BANK | ||||||
| By | ||||||
| Xxxxx Xxxxxxx | ||||||
| Assistant Vice President | ||||||
SCHEDULE 1
CERTAIN SPECIFIED PROVISIONS
| 1. | Commitment Amount: $30,000,000, subject to reduction in accordance with the terms and provisions of Schedule 2 | |
| 2. | Facility Fee: $37,500 | |
| 3. | Applicable Margin: 1.25% per annum | |
| 4. | Financial Covenant Parties means Borrower. | |
| 5. | Authorized Officer(s): |
| Name | Title | |
Xxxxxx Xxxxxxx
|
Senior Vice President | |
Xxxxxxx Xxxxxx
|
Senior Vice President |
| 6. | Notice address for Borrower: |
c/o Acadia Realty Trust
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telefax: 000-000-0000
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telefax: 000-000-0000
| 7. | Notice address for Lender: |
Washington Mutual Bank
National Commercial Operations Center
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Portfolio Administration
Telephone: 000-000-0000
Telefax 000-000-0000
National Commercial Operations Center
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Portfolio Administration
Telephone: 000-000-0000
Telefax 000-000-0000
with a copy to:
Xx. Xxxx X. Xxxxxxx
Washington Mutual Bank
000 Xxxxx Xxxxxx
Washington Mutual Bank
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telefax: 000-000-0000
Telephone: 000-000-0000
Telefax: 000-000-0000
2
SCHEDULE 2
FINANCIAL COVENANTS
If at any time during the term of the Loan, Lender shall determine in its reasonable
discretion that as of the last day of a calendar year (the “Testing Date”) the Debt Service
Coverage Ratio (as hereinafter defined), calculated using the Assumed Debt Service (as hereinafter
defined), is less than 1.2 to 1.0, the Commitment shall be automatically and permanently reduced by
an aggregate amount which will have the effect of increasing the Debt Service Coverage Ratio such
that the ratio shall not be less than 1.2 to 1.0 and, in the event the outstanding principal amount
of the Loan would exceed the Commitment as a result of any such reduction, Borrower covenants and
agrees that within ten (10) days of notice from Lender of such determination Borrower shall prepay
the outstanding principal amount of the Loan by such amount as is necessary such that the
outstanding principal amount of the Loan is equal to or less than the Commitment as a result of
such reduction, together with any applicable prepayment premium or other amount provided for herein
or in the Note as a result of such prepayment. Borrower’s failure to effect such prepayment by the
expiration of such thirty (30) day period shall constitute an Event of Default. For purposes of
this paragraph, the following terms shall have the following meanings:
“Assumed Debt Service” shall mean debt service for a twelve (12) month period
of equal monthly payments of principal and interest calculated using an amount equal to the
Commitment Amount Lender’s then applicable underwriting rate for commercial real estate
loans and an amortization period of three hundred (300) months.
“Debt Service Coverage Ratio” shall mean the ratio of (i) the aggregate amount
of the NOI for the Property to (ii) the Assumed Debt Service.
“NOI” shall mean, as of the Testing Date, the current monthly rental payments
with respect to all Qualifying Leases multiplied by twelve (12), minus (i) the actual
Operating Expenses (as defined below) for the twelve (12) month period immediately preceding
the Testing Date and (ii) an amount for reasonable management expenses equal to the greater
of four percent (4%) of rents with respect to Qualifying Leases or the actual management
expenses for the twelve (12) month period immediately preceding the Testing Date.
“Operating Expenses” shall mean all reasonable operating expenses of the
Property, including, without limitation, those for maintenance, repairs, annual taxes,
insurance, utilities and other annual expenses (but not capital expenses) that are standard
and customary for properties similar to the Property. Operating Expenses for this purpose
shall not include any interest or principal payments on the Loan or any allowance for
depreciation.
The determination of NOI and Operating Expenses shall be made by Lender in its reasonable
discretion.
Borrower covenants and agrees to provide to Lender such information as Lender shall reasonably
request in connection with the calculation of NOI. Any failure or refusal by Borrower to provide
such information promptly following Lender’s request shall constitute an Event of Default hereunder
and under the Mortgage.
2
EXHIBIT A
BORROWING REQUEST
Washington Mutual Bank
National Operations Center
0000 X. Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: CREL/Asset Administration — 3545CCTX
Telefax: 000-000-0000
Email: xxxxxxxxxxxx@xxxx.xxx
National Operations Center
0000 X. Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: CREL/Asset Administration — 3545CCTX
Telefax: 000-000-0000
Email: xxxxxxxxxxxx@xxxx.xxx
Date:
,
This refers to the Revolving Credit Agreement dated as of March ___, 2007
(the “Credit Agreement”) (capitalized terms used herein and not otherwise defined have the meanings
given to them in the Credit Agreement), between the undersigned (“Borrower”) and Washington Mutual
Bank (“Lender”), and hereby gives Lender notice, irrevocably, pursuant to Section 2.3 of the Credit
Agreement that Borrower hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the “Requested Borrowing”)
as required by the Credit Agreement:
REQUESTED BORROWING
(i) The Business Day on which the Requested Borrowing is to be made is
, 20___.
(ii) The aggregate amount of the Requested Borrowing is
$ .
(iii) Borrower intends to use the funds requested pursuant to the Requested Borrowing for the
following purpose(s):
.
(iv) Borrower anticipates repaying the Requested Borrowing from the following source:
(NOTE — this information is requested for
information purposes only).
CERTIFICATIONS
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Requested Borrowing, before and immediately after giving effect
thereto and to the application of the proceeds therefrom:
(A) The representations and warranties contained in Article IV of the Credit Agreement are
true and correct as though made on and as of such dates, unless such representations and warranties
are expressly stated to be made as of an earlier date;
(B) The most recent financial statements of Borrower delivered pursuant to the Mortgage (as
defined in the Credit Agreement) present fairly the financial position and results of operations of
Borrower and the other Financial Covenant Parties as of the date of, and for the periods presented
in, such financial statements, and since the date of such financial statements there has not been
any material adverse change in the financial condition or operations of Borrower or any other
Financial Covenant Party;
(C) Borrower is in full compliance with all covenants contained in Articles V and VI of the
Credit Agreement;
(D) No event has occurred and is continuing, or would result from such Requested Borrowing,
that constitutes or would constitute an Event of Default or a Default under the Credit Agreement;
and
(E) The Unused Commitment is not less than zero nor will it be less than zero immediately
after giving effect to the Requested Borrowing.
| Very truly yours, | ||||||||
| BORROWER: | ||||||||
| ACADIA REALTY LIMITED PARTNERSHIP, a Delaware limited partnership |
||||||||
| By: | Acadia Realty Trust, a Maryland real estate investment trust, its general partner |
|||||||
| By | ||||||||
| Name: | ||||||||
| Title: | ||||||||
2
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
This
Certificate, dated as of , 20___ is executed and delivered by the undersigned
(“Borrower”). Borrower and WASHINGTON MUTUAL BANK (“Lender”) are the Borrower and Lender,
respectively, under the terms of an unsecured Revolving Credit Agreement (the “Credit Agreement”)
dated as of , 20___. Capitalized terms used in this Certificate and not otherwise
defined have the meanings given to those terms in the Credit Agreement.
The undersigned hereby certifies to Lender as follows:
1. I have reviewed, and am familiar with, the terms of the Credit Agreement and the other Loan
Documents. I have made, or have caused to be made, an analysis of the condition and affairs of
Borrower as of the end of the fiscal quarter ending
, 20___ (the “Applicable
Period-End”).
2. Such analysis did not disclose, and I am not aware of, the existence of any Event of
Default as of either the Applicable Period-End or the date of this Certificate.
3. Such analysis did not disclose, and I am not aware, that any representation or warranty set
forth in the Credit Agreement or the other Loan Documents was or is untrue in any material respect
as of either the Applicable Period-End or the date of this Certificate, in each case as if remade
on and as of such date.
4. Without limiting the generality of the foregoing, Borrower and the other Financial Covenant
Parties were in full compliance with all financial covenants set forth in Schedule 2 to the
Credit Agreement at the Applicable Period-End. Attached to this Certificate are detailed
computations demonstrating compliance with those financial covenants.
5. All information and calculations set forth in this Certificate and its attachments, or
submitted to Lender with this Certificate, is true and correct in all material respects.
DATED as of the date first set forth above.
| Very truly yours, | ||||||||
| BORROWER: | ||||||||
| ACADIA REALTY LIMITED PARTNERSHIP, a Delaware limited partnership |
||||||||
| By: | Acadia Realty Trust, a Maryland real estate investment trust, its general partner |
|||||||
| By | ||||||||
| Name: | ||||||||
| Title: | ||||||||
2
Computations Supporting Financial Covenant Compliance
3
TABLE OF CONTENTS
| Page | ||||||||
| ARTICLE I | DEFINITIONS AND ACCOUNTING TERMS | 1 | ||||||
| Section 1.1. | Certain Defined Terms | 1 | ||||||
| Section 1.2. | Computation of Time Periods | 5 | ||||||
| Section 1.3. | Accounting Terms | 5 | ||||||
| ARTICLE II | AMOUNTS AND TERMS OF THE BORROWINGS | 5 | ||||||
| Section 2.1. | The Commitment | 5 | ||||||
| Section 2.2. | Fees | 5 | ||||||
| Section 2.3. | The Borrowings | 5 | ||||||
| Section 2.4. | Procedure for Borrowings | 6 | ||||||
| Section 2.5. | Interest Rate | 6 | ||||||
| Section 2.6. | Payment of Interest | 7 | ||||||
| Section 2.7. | Unavailability of LIBOR Rate | 7 | ||||||
| Section 2.8. | Default Rate | 7 | ||||||
| Section 2.9. | Maximum Interest | 7 | ||||||
| Section 2.10. | Late Charge | 7 | ||||||
| Section 2.11. | Prepayments | 7 | ||||||
| Section 2.12. | Reduction of Balance to Zero | 7 | ||||||
| Section 2.13. | Maturity; Extension of Maturity Date | 8 | ||||||
| Section 2.14. | Evidence of Indebtedness | 8 | ||||||
| Section 2.15. | Illegality | 9 | ||||||
| ARTICLE III | CONDITIONS OF BORROWING | 9 | ||||||
| Section 3.1. | Conditions Precedent to Initial Advance | 9 | ||||||
| Section 3.2. | Conditions Precedent to Each Advance | 11 | ||||||
| ARTICLE IV | REPRESENTATIONS AND WARRANTIES | 12 | ||||||
| Section 4.1. | Organization | 12 | ||||||
| Section 4.2. | Authorization; No Breach | 12 | ||||||
| Section 4.3. | Financial Information | 12 | ||||||
| Section 4.4. | Legal Effect | 12 | ||||||
| Section 4.5. | Compliance with Law | 12 | ||||||
| Section 4.6. | Hazardous Substances | 12 | ||||||
| Section 4.7. | Litigation and Claims | 13 | ||||||
| Section 4.8. | Taxes | 13 | ||||||
| Section 4.9. | Employee Benefit Plans | 13 | ||||||
| Section 4.10. | Regulated Entities | 13 | ||||||
| Section 4.11. | Information | 13 | ||||||
| Section 4.12. | Survival of Representations and Warranties | 13 | ||||||
| ARTICLE V | AFFIRMATIVE COVENANTS | 14 | ||||||
| Section 5.1. | Changes in Financial Condition; Litigation | 14 | ||||||
| Section 5.2. | Financial Records | 14 | ||||||
| Section 5.3. | Reporting Requirements | 14 | ||||||
| Section 5.4. | Other Agreements | 14 | ||||||
i
| Page | ||||||||
| Section 5.5. | Executive Personnel | 14 | ||||||
| Section 5.6. | Compliance With Law | 14 | ||||||
| Section 5.7. | Inspection | 14 | ||||||
| Section 5.8. | Existence | 14 | ||||||
| Section 5.9. | Maintenance of Insurance | 14 | ||||||
| Section 5.10. | Use of Proceeds | 15 | ||||||
| Section 5.11. | Information for Participants, Etc.; Publicity | 15 | ||||||
| Section 5.12. | Additional Assurances | 15 | ||||||
| ARTICLE VI | NEGATIVE COVENANTS | 15 | ||||||
| Section 6.1. | Business Activities | 15 | ||||||
| Section 6.2. | Loans and Guaranties | 15 | ||||||
| Section 6.3. | Dividends and Distributions | 16 | ||||||
| Section 6.4. | Liquidation, Merger, Sale of Assets | 16 | ||||||
| Section 6.5. | Transactions with Affiliates | 16 | ||||||
| Section 6.6. | Financial Covenants | 16 | ||||||
| ARTICLE VII | DEFAULT AND REMEDIES | 16 | ||||||
| Section 7.1. | Events of Default | 16 | ||||||
| Section 7.2. | Remedies | 18 | ||||||
| Section 7.3. | Right of Offset | 18 | ||||||
| Section 7.4. | Cumulative Remedies | 19 | ||||||
| Section 7.5. | Application of Payments | 19 | ||||||
| ARTICLE VIII | MISCELLANEOUS | 19 | ||||||
| Section 8.1. | Amendments | 19 | ||||||
| Section 8.2. | Notices | 19 | ||||||
| Section 8.3. | No Waiver; Remedies | 19 | ||||||
| Section 8.4. | Costs and Expenses; Indemnification | 20 | ||||||
| Section 8.5. | Binding Effect; Assignments and Participations | 20 | ||||||
| Section 8.6. | Execution in Counterparts | 20 | ||||||
| Section 8.7. | Governing Law | 21 | ||||||
| Section 8.8. | Jurisdiction and Venue | 21 | ||||||
| Section 8.9. | Further Assurances | 21 | ||||||
| Section 8.10. | No Fiduciary Duty | 21 | ||||||
| Section 8.11. | Severability | 21 | ||||||
| Section 8.12. | Entire Agreement | 22 | ||||||
| Section 8.13. | Descriptive Headings | 22 | ||||||
| Section 8.14. | Gender and Number | 22 | ||||||
| Section 8.15. | Prior Agreement Amended and Restated | 22 | ||||||
| Section 8.16. | Non-Recourse/Limited Liability | 22 | ||||||
SCHEDULE 1
|
Certain Specified Provisions | |
SCHEDULE 2
|
Financial Covenants | |
SCHEDULE 3
|
Financial Reporting | |
EXHIBIT A
|
Form of Borrowing Request | |
EXHIBIT B
|
Form of Compliance Certificate |
ii
