<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 11, 2000
UNI-INVEST (U.S.A.), LTD.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in charter)
Maryland 0-14510 42-1241468
- --------------------------------------------------------------------------------
(State or other (Commission (IRS Employer
Jurisdiction of File Number) Identification
Incorporation) No.)
44 South Bayles Avenue, Port Washington, New York 11050
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 767-6492
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE>
Uni-Invest (U.S.A.), Ltd.
Item 2. Acquisition or Disposition of Assets
1) Sale of the Fund's Interest in Germantown (Louisville, KY)
Shopping Center:
On May 11, 2000, Uni-Invest (U.S.A.) Partnership, L.P. (the
"Operating Partnership"), pursuant to the operation of a "buy-sell"
provision in the Agreement of Co-Tenancy by and between Life
Investors Insurance Company of America ("Life Investors") and the
Operating Partnership (as successor in interest to Cedar Income Fund
2, Ltd.) ("The Agreement"), sold its 50% interest in the Germantown
Square Shopping Center, (Louisville, KY) ("Germantown") to Life
Investors for $3 million. The Operating Partnership incurred
expenses, including title charges (as required in the Agreement) and
other costs in the aggregate amount of approximately $9,000 in
connection with the transaction. The Operating Partnership initiated
the "buy-sell" provision of the Agreement by written notice given to
Life Investors on April 3, 2000. Life Investors notified the
Operating Partnership by letter dated April 28, 2000 that it elected
to buy the Operating Partnership's 50% interest.
Net closing adjustments for real estate taxes and prepaid rent in
the aggregate amount of $8,609.96 were charged against the Operating
Partnership. In addition, the parties agreed that Life Investors
would make, and the Operating Partnership would accept, the
distributions attributable to April 2000 and May 2000 on or about
the 20th of the month succeeding the month attributable to such
distribution. The distribution attributable to April 2000 in the
amount of $59,047.35 has been received. A distribution is expected
in June 2000 representing the amount attributable to 10 days
ownership in May 2000. The net sales amount received by the
Operating Partnership was $2,982,640.79 exclusive of the April 2000
distribution. $3,000,000 was invested in qualifying money market
instruments pending use of such amounts for the purchase of the
three Pennsylvania shopping centers and related matters further
described in the proxy materials and the 10-Q filed by Uni-Invest
(U.S.A.), Ltd. (the "Company") on May 15, 2000.
Cedar Bay Realty Advisors, Inc. ("CBRA") is entitled to receive a
disposition fee from the Company in accordance with the terms of the
investment advisory agreement between CBRA and the Company in an
amount not to exceed 3%. In fact, CBRA has agreed with management of
the Company to defer a portion of its fee and to accept a fee of
2.5%. After stipulated limiting conditions, such fee is calculated
to be $22,500.
The cost basis for Germantown on the books of the Operating
Partnership and the Company as of the closing date was $2,889,496.
Accordingly, the Company and Operating Partnership realized a
gain on such sale of approximately $80,000. The Company and
Operating Partnership expect that such amounts will not be
distributed to shareholders as a capital gain distribution as a
result of excess distributions, net operating loss carry-forwards
and/or the intended use of such proceeds for reinvestment in
qualifying real estate like-kind exchange property thus avoiding or
deferring any potential current tax on such gain.
2) New Credit Facility for the Operating Partnership:
On May 10, 2000, the Company and Operating Partnership closed a
credit-line facility extended by KeyBank National Association
("KeyBank") to the Operating Partnership and guaranteed by the
Company in the amount of $10 million, of which approximately $1.516
million was drawn down at closing. Such amounts were used to repay a
<PAGE>
Uni-Invest (U.S.A.), Ltd.
then-existing first mortgage loan secured by Broadbent Business
Center, Salt Lake City, Utah, held by Lutheran Brotherhood, in the
amount of $1,358,789.39, including interest and prepayment penalties
of approximately $50,548.35. In addition, the Operating Partnership
incurred closing costs, consisting of legal fees for the borrower's
counsel and for the lender's counsel, mortgagee's title insurance,
mortgage recording taxes and related costs of approximately
$156,854.19. The Company utilized the services of a mortgage broker
to whom it is obligated to pay $50,000 for arranging the KeyBank
facility, of which $25,000 has been paid.
The credit-line facility is secured at this time by first mortgage
liens and/or deeds of trust on the three office and office/warehouse
properties owned by the Operating Partnership. Such properties are
located in Jacksonville, Florida (Southpoint Parkway Center), Salt
Lake City, Utah (Broadbent Business Center) and Bloomington,
Illinois (Corporate Center East).
The terms and conditions of the KeyBank loan agreement include but
are not limited to: (i) 24 month maturity (i.e. May 9, 2002), (ii)
maximum loan amount of $10,000,000.00, (iii) maximum availability
equal to the lesser of (a) 65% of the aggregate appraised value of
the mortgage properties and (b) $10,000,000.00, (iv) an interest
rate payable, at borrower's, option which is a sliding scale over
KeyBank's prime rate or a sliding scale over LIBOR (the spread/scale
increasing as the ratio of loan to value increases), (v) debt
service coverage of not less than 1.5 times Adjusted Consolidated
EBITDA, (vi) payment by borrower to the bank of $20,000 per quarter,
in advance, as Administrative Agent Fee, (vii)payment by borrower to
the bank of a sliding scale Facility Fee based upon the amount of
the unused loan amount and (viii) payment by borrower to KeyBank of
a commitment fee equal to 1% of the amount of the loan facility, or
$100,000, which amount was paid prior to the loan closing. The
credit-line facility also contains a covenant wherein after the
purchase of the three Pennsylvania shopping centers,
dividends/distributions shall be limited to 75% of Funds From
Operations less capital expenditures plus (i) amounts necessary to
maintain the Company's real estate investment trust status and (ii)
amounts necessary to avoid payment by the Company of federal, state
and excise taxes. The full text of the Credit Agreement dated May
10, 2000 is filed herewith. All capitalized terms have the meaning
provided in the Credit Agreement.
Item 7. Financial Statements and Exhibits.
Pro Forma Combined Balance Sheet as of March 31, 2000.
Pro Forma Combined Statement of Operations for the three months
ended March 31, 2000.
Pro Forma Combined Statement of Operations for the twelve months
ended December 31, 1999.
Notes to Pro Forma Financial Statements.
Exhibits.
Press release dated May 17, 2000 regarding sale of Germantown
KeyBank National Association Credit Agreement dated May 10, 2000
<PAGE>
Uni-Invest (U.S.A.), Ltd.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its
behalf by the undersigned thereunto duly authorized.
UNI-INVEST (U.S.A.), LTD.
By: /s/ Leo S. Ullman
---------------------------------
Leo S. Ullman
President
Dated: May 26, 2000
<PAGE>
Uni-Invest (U.S.A.), Ltd.
Pro Forma Condensed Combining Balance Sheet
As of March 31, 2000
The following unaudited pro forma condensed combining balance sheet is presented
as if the Company had sold Germantown on March 31, 2000. This pro forma
condensed combining balance sheet should be read in conjunction with the pro
forma condensed combining statement of operations of the Company and the
historical financial statements and notes thereto of the Company as filed on
Form 10-Q for the three months ended March 31, 2000. The pro forma condensed
combining balance sheet is unaudited and is not necessarily indicative of what
the actual financial position would have been had the Company sold Germantown on
March 31, 2000, nor does it purport to represent the future financial position
of the Company.
<TABLE>
<CAPTION>
Uni-Invest
(U.S.A.), Ltd. Germantown Pro Forma
Historical (a) Disposition (b) March 31, 2000
----------- ----------- -----------
Description
<S> <C> <C> <C>
Assets:
Real estate, net $13,916,183 $(2,883,483) $11,032,700
Cash and cash equivalents 2,205,630 3,010,551 5,216,181
Tenant receivables 101,248 (50,118) 51,130
Affiliate receivables 29,311 (29,311) --
Deferred rent receivable 12,312 (2,156) 10,156
Prepaid expenses and other 89,217 (3,046) 86,171
Deferred leasing and financing costs 223,655 (22,548) 201,107
Deferred legal 13,234 -- 13,234
----------- ----------- -----------
Total Assets $16,590,790 $ 19,889 $16,610,679
=========== =========== ===========
Liabilities and Stockholders' Equity
Mortgage notes payable $ 1,339,328 $ -- $ 1,339,328
Accrued expenses and other 498,066 (42,695) 455,371
Affiliate payables 7,070 (7,070) --
----------- ----------- -----------
Total Liabilities 1,844,464 (49,765) 1,794,699
----------- ----------- -----------
Limited partner's interest in Operating
Partnership 9,534,027 45,777 9,579,804
Stockholders Equity:
Common stock 9,421 -0- 9,421
Additional paid-in capital 5,202,878 23,877 5,226,755
----------- ----------- -----------
Total Stockholders' Equity 5,212,299 23,877 5,236,176
----------- ----------- -----------
Total Liabilities and
Stockholders' Equity $16,590,790 $ 19,889 $16,610,679
=========== =========== ===========
</TABLE>
See accompanying Notes to Pro Forma Financial Statements
<PAGE>
Uni-Invest (U.S.A.), Ltd.
Pro Forma Combined Statement of Operations
For the three months ended March 31, 2000
The following unaudited pro forma condensed combining Statement of Operations is
presented as if the company had disposed of Germantown Square as of January 1,
2000 and the Company qualified as a REIT, distributed all its taxable income
and, therefore, incurred no income tax expense during the period. This pro forma
condensed combining Statement of Operations should be read in conjunction with
the pro forma condensed combining balance sheet of the Company and the
historical financial statements and notes thereto of the Company as filed on
Form 10-Q for the three months ended March 31, 2000. The pro forma condensed
combining Statement of Operations is unaudited and is not necessarily indicative
of what the actual financial position would have been had the Company sold
Germantown Square as of January 2000, nor does it purport to represent the
operations of the Company for future periods.
<TABLE>
<CAPTION>
Uni-Invest Three months ended
(U.S.A.), Ltd. Germantown Pro Forma March 31, 200
Historical (c) Disposition (d) March 31, 2000 (e) (Pro Forma)
-------------- --------------- ------------------ -----------
Description
<S> <C> <C> <C> <C>
Revenues:
Base rent $ 544,477 $ (88,425) $ $ 456,052
Tenant escalations 111,415 (42,700) 68,715
Other -- --
Interest 40,548 43,405 83,953
Total revenues 696,440 (131,125) 43,405 608,720
--------- --------- --------- ---------
Expenses:
Operating expenses
Property expenses 196,735 (18,645) 178,090
Real estate taxes 65,930 (9,796) 56,134
Administrative 80,390 (118) 80,272
--------- --------- --------- ---------
Total operating expenses 343,055 (28,559) -- 314,496
--------- --------- --------- ---------
Interest 31,507 -- 31,507
Depreciation and amortization 114,829 (19,400) 95,429
--------- --------- --------- ---------
Total expenses 489,391 (47,959) -- 441,432
--------- --------- --------- ---------
Net income before limited partner's
interest in Operating Partnership 207,049 (83,166) 43,405 167,288
Limited partner's interest (143,474) 53,534 (28,361) (118,301)
--------- --------- --------- ---------
Net income $ 63,575 $ (29,632) $ 15,044 $ 48,987
========= ========= ========= =========
Basic and diluted net income per share $ 0.07 $ (.03) $ 0.01 $ 0.05
========= ========= ========= =========
</TABLE>
See accompanying notes to Pro Forma Financial Statements
<PAGE>
Uni-Invest (U.S.A.), Ltd.
Pro Forma Combined Statement of Operations
For the twelve months ended December 31, 1999
The following unaudited pro forma condensed combining Statement of Operations is
presented as if the Company had disposed of Germantown as of January 1, 1999 and
the Company qualified as a REIT, distributed all its taxable income and,
therefore, incurred no income tax expense during the period. This pro forma
condensed combining Statement of Operations should be read in conjunction with
the pro forma condensed combining balance sheet of the Company and the
historical financial statements and notes thereto of the Company as filed on
Form 10-K for the year ended December 31. 1999. The pro forma condensed
combining Statement of Operations is unaudited and is not necessarily indicative
of what the actual financial position would have been had the Company disposed
of Germantown as of January 1, 1999, nor does it purport to represent the
operations of the Company for future periods.
<TABLE>
<CAPTION>
Uni-Invest
(U.S.A.), Ltd. Germantown Pro Forma 1999
Historical(f) Disposition(g) Adjustments(h) Pro Forma
------------- -------------- -------------- ---------
Description
<S> <C> <C> <C> <C>
Revenues:
Base rent $ 2,177,622 $ (370,166) $ -- $ 1,807,456
Tenant escalations 236,336 (29,052) 207,284
Other 75,000 75,000
Interest 26,329 151,961 178,290
----------- ----------- ----------- -----------
Total revenues 2,515,287 (399,218) 151,961 2,268,030
----------- ----------- ----------- -----------
Expenses:
Operating expenses
Property expenses 667,517 (72,614) 594,903
Real estate taxes 258,597 (37,317) 221,280
Administrative 588,797 (472) 588,325
----------- ----------- ----------- -----------
Total operating expenses 1,514,911 (110,403) -- 1,404,508
----------- ----------- ----------- -----------
Interest 127,700 -- 127,700
Depreciation and amortization 492,716 (77,135) 415,581
----------- ----------- ----------- -----------
Total expenses 2,135,327 (187,538) -- 1,947,789
----------- ----------- ----------- -----------
Net income before limited partner's
interest in Operating Partnership 379,960 (211,680) 151,961 320,241
Limited partner's interest (315,490) 156,670 (113,008) (271,828)
----------- ----------- ----------- -----------
Net income $ 64,470 $ (55,010) $ 38,953 $ 48,413
=========== =========== =========== ===========
Basic and diluted net income per share $ 0.11 $ (0.09) $ 0.06 $ 0.08
=========== =========== =========== ===========
</TABLE>
See accompanying notes to Pro Forma Financial Statements
<PAGE>
Uni-Invest (U.S.A.), Ltd.
Notes to Pro Forma Financial Statements
Pro Forma Condensed Combining Balance Sheet
a. Reflects the Company's historical balance sheet as of March 31, 2000.
b. Reflects the disposition of Germantown for $3 million cash.
Pro Forma Condensed Combining Statements of Operations for the three months
ended March 31, 2000
c. Reflects the historical operations of the Company for the three months ended
March 31, 2000.
d. Reflects the operations of Germantown for the three months ended March 31,
2000.
e. Reflects the interest income associated with the net cash received from the
sale of Germantown.
Pro forma Condensed Combining Statements of Operations for the Year Ended
December 31, 1999
f. Reflects the historical operations of the Company for the year ended
December 31, 1999.
g. Reflects the operations of Germantown for the year ended December 31, 1999.
h. Reflects the interest income associated with the net cash received from the
sale of Germantown.
<PAGE>
Exhibit 99.1
UNI-INVEST (U.S.A.), LTD.
44 South Bayles Avenue, #304
Port Washington, New York 11050
Contact: Brenda J. Walker
Vice President
(516) 767-6492
FOR IMMEDIATE RELEASE
- ---------------------
UNI-INVEST (U.S.A.), LTD. REPORTS FIRST QUARTER RESULTS
-------------------------------------------------------
Port Washington, New York - May 17, 2000 - Uni-Invest (U.S.A.), Ltd. (the
"Company") reported net income for the three months ended March 31, 2000 of
$63,575 ($0.07 per share) compared to income of $36,625 ($0.07 per share) for
the same period in 1999. The increase in net income is attributable primarily to
an increase in interest income.
Rental income for the three months ended March 31, 2000 was $655,892
compared to $653,246 for the same period in 1999.
Funds From Operations ("FFO") for the Company for the three months ended
March 31, 2000 were $104,489 (approximately $0.11 per share) compared to $67,116
(approximately $0.12 per share) for the corresponding period in 1999.
FFO for Uni-Invest (U.S.A.) Partnership, L.P. (the "Operating Partnership")
of which Uni-Invest (U.S.A.), Ltd. is the sole general partner for the three
months ended March 31, 2000 were $321,878 (approximately $0.12 per unit)
compared to $304,521 (approximately $0.14 per unit) for the corresponding period
in 1999.
The per share information for the period ended March 31, 2000, as compared
to the period ended March 31, 1999, reflects the issuance of 400,000 new shares
of common stock in November 1999 placed with Uni-Invest Holdings (U.S.A.) B.V.
of the Netherlands and certain other foreign investors.
The Board of Directors has declared a dividend of $0.10 per share on the
Company's common stock, payable on June 8, 2000 to stockholders of record as of
May 28, 2000.
On May 10, 2000, the Operating Partnership entered into a line-of-credit
agreement with KeyBank for $10 million, of which approximately $1.55 million was
drawn down at closing and used to retire certain existing financing on the
Operating Partnership's Broadbent Business Center in Salt Lake City, Utah.
On May 11, 2000, the Operating Partnership sold its interest in the
Germantown Square Shopping Center in Louisville, Kentucky for $3 million,
representing a gain of approximately $100,000 over its book value. The proceeds
are expected to be used for certain pending acquisitions of shopping center
properties.
Uni-Invest (U.S.A.), Ltd. is a real estate investment trust administered by
Cedar Bay Realty Advisors, Inc., Port Washington, New York. Shares of Uni-Invest
(U.S.A.), Ltd. are traded on The NASDAQ Small Cap Stock Market under the symbol
"UNII".
<PAGE>
CREDIT AGREEMENT
(Secured Acquisition Loan and Revolving Line of Credit)
by and among
UNI-INVEST (U.S.A.) PARTNERSHIP, L.P.,
as Borrower
and
KEYBANK NATIONAL ASSOCIATION,
as a Bank and as Administrative Agent
and
the BANKS party hereto from time to time
Dated as of May 10, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I DEFINITIONS............................................................................................1
SECTION 1.1. Definitions................................................................................1
SECTION 1.2. Accounting Terms and Determinations.......................................................25
SECTION 1.3. Interpretation............................................................................25
SECTION 1.4. Types of Borrowings.......................................................................25
ARTICLE II THE LOANS.............................................................................................26
SECTION 2.1. Commitments to Lend.......................................................................26
SECTION 2.2. Restrictions on Borrowings................................................................26
SECTION 2.3. Notice of Borrowing.......................................................................27
SECTION 2.4. Notice to Banks; Funding of Loans.........................................................27
SECTION 2.5. Notes.....................................................................................28
SECTION 2.6. Maturity of Loans.........................................................................29
SECTION 2.7. Interest Rates............................................................................29
SECTION 2.8. Fees......................................................................................30
SECTION 2.9. Maturity Date.............................................................................31
SECTION 2.10. Mandatory Prepayment.....................................................................31
SECTION 2.11. Optional Prepayments.....................................................................32
SECTION 2.12. General Provisions as to Payments........................................................32
SECTION 2.13. Funding Losses...........................................................................33
SECTION 2.14. Computation of Interest and Fees.........................................................33
SECTION 2.15. Method of Electing Interest Rates........................................................34
ARTICLE II ICONDITIONS...........................................................................................35
SECTION 3.1. Conditions to Initial Disbursement of Loans...............................................35
SECTION 3.2. Borrowings................................................................................38
SECTION 3.3. Conditions Precedent to Additional Mortgaged Properties...................................40
SECTION 3.4. Mortgaged Properties......................................................................42
SECTION 3.5. Release of Mortgaged Properties...........................................................44
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE IV REPRESENTATIONS AND WARRANTIES AS TO THE BORROWER.....................................................45
SECTION 4.1. Organization and Power....................................................................45
SECTION 4.2. Power and Authority.......................................................................46
SECTION 4.3. No Violation..............................................................................46
SECTION 4.4. Financial Information.....................................................................46
SECTION 4.5. Litigation................................................................................46
SECTION 4.6. Compliance with ERISA.....................................................................47
SECTION 4.7. Environmental Compliance..................................................................48
SECTION 4.8. Taxes.....................................................................................49
SECTION 4.9. Full Disclosure...........................................................................49
SECTION 4.10. Solvency.................................................................................49
SECTION 4.11. Use of Proceeds: Margin Regulations.....................................................50
SECTION 4.12. Consents and Authorizations..............................................................50
SECTION 4.13. Investment Company Act; Public Utility Holding Company Act...............................50
SECTION 4.14. Representations and Warranties in Loan Documents.........................................50
SECTION 4.15. Patents, Trademarks, etc.................................................................50
SECTION 4.16. No Default...............................................................................50
SECTION 4.17. Licenses, etc............................................................................51
SECTION 4.18. Compliance With Law......................................................................51
SECTION 4.19. No Burdensome Restrictions...............................................................51
SECTION 4.20. Brokers' Fees............................................................................51
SECTION 4.21. Labor Matters............................................................................51
SECTION 4.22. Organizational Documents.................................................................51
SECTION 4.23. Principal Offices........................................................................52
SECTION 4.24. Borrower's Name..........................................................................52
SECTION 4.25. Ownership of Real Property Assets........................................................52
SECTION 4.26. Security Interests and Liens.............................................................52
SECTION 4.27. Structural Defects and Violation of Law..................................................52
SECTION 4.28. Ownership of Other Persons...............................................................53
SECTION 4.29. Ownership................................................................................53
ARTICLE V REPRESENTATIONS AND WARRANTIES AS TO THE REIT..........................................................53
SECTION 5.1. Organization and Power....................................................................53
SECTION 5.2. Power and Authority.......................................................................53
SECTION 5.3. No Violation..............................................................................54
SECTION 5.4. Financial Information.....................................................................54
SECTION 5.5. Litigation................................................................................54
SECTION 5.6. Compliance with ERISA.....................................................................55
SECTION 5.7. Taxes.....................................................................................55
SECTION 5.8. Full Disclosure...........................................................................56
SECTION 5.9. Solvency..................................................................................56
SECTION 5.10. Consents and Authorizations..............................................................56
SECTION 5.11. Investment Company Act; Public Utility Holding Company Act...............................56
SECTION 5.12. Representations and Warranties in Loan Documents.........................................57
SECTION 5.13. Patents, Trademarks, etc.................................................................57
SECTION 5.14. No Default...............................................................................57
SECTION 5.15. Licenses, etc............................................................................57
SECTION 5.16. Compliance With Law......................................................................57
SECTION 5.17. No Burdensome Restrictions...............................................................57
SECTION 5.18. Brokers' Fees............................................................................58
SECTION 5.19. Labor Matters............................................................................58
SECTION 5.20. Organizational Documents.................................................................58
SECTION 5.21. Principal Offices........................................................................58
SECTION 5.22. REIT's Name..............................................................................58
SECTION 5.23. REIT Status..............................................................................58
SECTION 5.24. Ownership of Other Persons...............................................................58
SECTION 5.25. Ownership................................................................................58
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE VI REPORTING COVENANTS...................................................................................59
SECTION 6.1. Financial Statements and Other Financial and Operating Information........................59
SECTION 6.2. Environmental Notices.....................................................................64
SECTION 6.3. Confidentiality...........................................................................64
ARTICLE VII AFFIRMATIVE COVENANTS................................................................................65
SECTION 7.1. With Respect to the Borrower..............................................................65
SECTION 7.2. With Respect to the REIT..................................................................68
ARTICLE VIII NEGATIVE COVENANTS..................................................................................71
SECTION 8.1. With Respect to the Borrower and its Consolidated Subsidiaries............................71
SECTION 8.2. Margin Regulations........................................................................73
SECTION 8.3. Management; Change in Control.............................................................73
SECTION 8.4. Organization of REIT; NASDAQ or NYSE Listing..............................................73
SECTION 8.5. Organization of Borrower..................................................................73
SECTION 8.6. Material Acquisitions.....................................................................73
SECTION 8.7. Restriction on Major Lease Modifications..................................................74
SECTION 8.8. Prohibitions of Cross-Default and Cross-Collateralization.................................74
ARTICLE IX FINANCIAL COVENANTS...................................................................................74
SECTION 9.1. Leverage Ratio............................................................................74
SECTION 9.2. Debt Service Coverage Ratio...............................................................74
SECTION 9.3. Mortgaged Property Aggregate Occupancy Rate...............................................74
SECTION 9.4. Minimum Tangible Net Worth................................................................75
SECTION 9.5. Distributions.............................................................................75
SECTION 9.6. Restrictions on Investments...............................................................75
SECTION 9.7. Calculation...............................................................................76
ARTICLE X DEFAULTS...............................................................................................76
SECTION 10.1. Events of Default........................................................................76
SECTION 10.2. Rights and Remedies......................................................................80
SECTION 10.3. Notice of Default........................................................................81
SECTION 10.4. Waivers of Demand........................................................................81
SECTION 10.5. Waivers, Amendments and Remedies.........................................................81
ARTICLE XI THE ADMINISTRATIVE AGENT..............................................................................81
SECTION 11.1. Appointment and Authorization............................................................81
SECTION 11.2. Administrative Agent and Affiliates......................................................81
SECTION 11.3. Action by Administrative Agent...........................................................81
SECTION 11.4. Consultation with Experts................................................................82
SECTION 11.5. Liability of Administrative Agent........................................................82
SECTION 11.6. Indemnification..........................................................................82
SECTION 11.7. Credit Decision..........................................................................82
SECTION 11.8. Successor Administrative Agent...........................................................82
SECTION 11.9. Administrative Agent's Fee...............................................................83
SECTION 11.10. Copies of Notices.......................................................................83
SECTION 11.11. Removal of the Administrative Agent.....................................................83
SECTION 11.12. Consent and Approvals...................................................................83
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE XII CHANGE IN CIRCUMSTANCES..............................................................................85
SECTION 12.1. Basis for Determining Interest Rate Inadequate or Unfair.................................85
SECTION 12.2. Illegality...............................................................................86
SECTION 12.3. Increased Cost and Reduced Return........................................................86
SECTION 12.4. Taxes....................................................................................87
SECTION 12.5. Base Rate Loans Substituted for Affected LIBOR Loans.....................................89
SECTION 12.6. Fixed Rate Price Adjustment..............................................................89
SECTION 12.7. Other Provisions.........................................................................90
ARTICLE XIII MISCELLANEOUS.......................................................................................90
SECTION 13.1. Notices..................................................................................90
SECTION 13.2. No Waivers...............................................................................91
SECTION 13.3. Expenses; Indemnification................................................................91
SECTION 13.4. Sharing of Set-Offs......................................................................92
SECTION 13.5. Amendments and Waivers...................................................................93
SECTION 13.6. Successors and Assigns...................................................................93
SECTION 13.7. Marshaling; Recapture....................................................................94
SECTION 13.8. Independence of Covenants................................................................95
SECTION 13.9. Change in Accounting Principles..........................................................95
SECTION 13.10. Counterparts; Integration; Effectiveness................................................95
SECTION 13.11. Survival................................................................................95
SECTION 13.12. Domicile of Loans.......................................................................96
SECTION 13.13. Limitation of Liability.................................................................96
SECTION 13.14. Governing Law; Submission to Jurisdiction...............................................96
SECTION 13.15. Waiver of Jury Trial....................................................................97
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS AND SCHEDULES
<S> <C>
EXHIBIT A - Form of Availability Certificate
EXHIBIT B - Form of Compliance Certificate
EXHIBIT C - Real Property Assets to be Added to Mortgaged Properties at Closing
EXHIBIT D - Form of Note
EXHIBIT E - Form of Notice of Borrowing
EXHIBIT F - Form of Interest Rate Election
EXHIBIT G - Form of Guaranty
EXHIBIT H - Form of Solvency Certificate
EXHIBIT I - Form of Subsidiary Guaranty
EXHIBIT J - Form of Assignment and Assumption Agreement
SCHEDULE 2.4(f) - Employees Authorized to Execute Notice of Borrowing
SCHEDULE 3.4(a)(ix) - Form of Subordination, Non-Disturbance and Attornment Agreement
SCHEDULE 4.6(c) - List of Borrower's Benefit Plans
SCHEDULE 4.21 - List of Borrower's Collective Bargaining Agreement/Multi-Employer Plans
SCHEDULE 4.24 - Names
SCHEDULE 4.28 - Ownership Interests of Borrower
SCHEDULE 4.29 - Direct and Indirect Ownership Interests in Borrower
SCHEDULE 5.6(c) - List of REIT's Benefit Plans
SCHEDULE 5.7 - Taxes
SCHEDULE 5.19 - List of REIT's Collective Bargaining Agreements/Multi-Employer Plans
SCHEDULE 5.22 - REIT Names
SCHEDULE 5.24 - Ownership Interests of REIT
SCHEDULE 5.25 - Direct and Indirect Ownership Interests in REIT
</TABLE>
<PAGE>
CREDIT AGREEMENT
(Secured Acquisition Loan and Revolving Line of Credit)
THIS CREDIT AGREEMENT is dated as of May __, 2000, among
UNI-INVEST (U.S.A.) PARTNERSHIP, L.P., a Delaware limited partnership (the
"Borrower") and KEYBANK NATIONAL ASSOCIATION, as a Bank and as Administrative
Agent for the Banks, and the BANKS from time to time party hereto (the "Banks").
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower is principally engaged in the business
of acquiring, developing and owning shopping center, retail and suburban office
properties and certain business activities and investment matters related
thereto; and
WHEREAS, the Borrower has requested the Banks to make certain
senior secured acquisition loans and a secured revolving credit facility
available to the Borrower in the maximum aggregate amount of $10,000,000
outstanding from time to time pursuant to the terms of this Agreement; and
WHEREAS, the Banks are willing to make such loans and facility
available to the Borrower on the terms, and subject to the conditions, set forth
in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have the
following meanings:
"Accountants" means Ernst and Young LLP or Grant Thornton LLP, or any
other "big six" accounting firm or another firm of certified public accountants
of national standing selected by Borrower and acceptable to the Administrative
Agent.
<PAGE>
"Acquisition Price" means the aggregate purchase price for a Real
Property Asset as set forth in the applicable purchase agreement with the seller
of such Real Property Asset, including bona fide purchase money financing
provided by the seller of such Real Property Asset, all prior Debt encumbering
such Real Property Asset at the time of acquisition (provided, however, that the
inclusion of such Debt is solely for the purpose of establishing the Acquisition
Price and shall not be deemed to constitute Permitted Debt under this Agreement)
and all costs of acquisition, including title insurance, survey, environmental
reports, brokerage fees, attorneys' fees and escrow expenses.
"Adjusted Consolidated EBITDA" means, at any time, for the most
recently ended Fiscal Quarter, (a) Consolidated EBITDA minus (b) the sum of the
Capital Reserve attributable to each Real Property Asset owned by a Consolidated
Entity for such Fiscal Quarter.
"Adjusted NOI" means, as determined as of the end of the most recently
ended Fiscal Quarter, (a) the aggregate of Net Operating Income for each
Mortgaged Property for such Fiscal Quarter minus (b) the sum of the following,
(i) the Capital Reserve for such Mortgaged Property, plus (ii) a management fee
equal to five percent (5%) of Property Revenues for such Mortgaged Property.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"Advisor" means Cedar Bay Realty Advisors, Inc., and its successors.
"Advisory Fee Subordination Agreement" means the Advisory Fee
Subordination Agreement delivered by the Advisor to the Administrative Agent
subordinating the Advisor's rights to any advisory fees payable to the Advisor
by any Consolidated Entity to the Obligations, in a form satisfactory to the
Administrative Agent in its sole discretion.
"Affiliates" as applied to any Person, means any other Person directly
or indirectly controlling, controlled by or under common control with, that
Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means (a) the possession, directly or
indirectly, of the power to vote ten percent (10%) or more of the securities
having voting power for the election of directors of such Person or otherwise to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities or by contract or otherwise,
or (b) the ownership of a general partnership interest, limited partnership
interest or a limited liability company interest representing ten percent (10%)
or more of the outstanding general partnership interests, limited partnership
interests or limited liability company interests, as applicable, of such Person.
"Aggregate Mortgaged Property Value" means, as of any date of
determination, the sum of the value of all of the Mortgaged Properties, which
value as to each Mortgaged Property shall be equal to the lesser of (a) the
Acquisition Price or (b) the Appraised Value of such Mortgaged Property.
"Agreement" means this Credit Agreement (Secured) as the same may from
time to time hereafter be modified, supplemented or amended.
<PAGE>
"Anchor Tenant" means either a discount department store, supermarket,
drug store, home improvement store or other type of store commonly known in the
real estate industry as an "anchor" having a minimum gross leaseable area of
twenty-five thousand (25,000) square feet.
"Anchored Shopping Center" means a shopping center that has an Anchor
Tenant or available space for an Anchor Tenant as a tenant.
"Applicable Interest Rate" means the lesser of (a) the rate at which
the interest rate applicable to any floating rate Debt could be fixed, at the
time of calculation, by the Borrower entering into an unsecured interest rate
swap agreement (or, if such rate is incapable of being fixed by entering into an
unsecured interest rate swap agreement at the time of calculation, a reasonably
determined fixed rate equivalent) and (b) the rate at which the interest rate
applicable to such floating rate Debt is actually capped, at the time of
calculation, if the Borrower has entered into an interest rate cap agreement
with respect thereto or if the documentation for such Debt contains a cap.
"Applicable Lending Office" means, with respect to any Bank, (a) in the
case of its Base Rate Loans, its Domestic Lending Office and (b) in the case of
its LIBOR Loans, its LIBOR Lending Office.
"Applicable Margin" means (a) prior to the addition of all of the
Pennsylvania Acquisition Properties to the Mortgaged Properties in accordance
with the terms of this Agreement: (i) two (2.0) basis points, with respect to
Base Rate Loans; and (ii) two and seventy-five one-hundredths (2.75) basis
points, with respect to LIBOR Loans and (b) after the addition of all of the
Pennsylvania Acquisition Properties to the Mortgaged Properties in accordance
with the terms of this Agreement, as follows:
- -----------------------------------------------------------------------
Base Rate Loans LIBOR Loans
Leverage Ratio Applicable Margin Applicable Margin
- -----------------------------------------------------------------------
Up to 45% 1.50 basis points 2.25 basis points
- -----------------------------------------------------------------------
>45% to 55% 1.75 basis points 2.50 basis points
- -----------------------------------------------------------------------
>55% to 65% 2.00 basis points 2.75 basis points
- -----------------------------------------------------------------------
"Appraisals" means, with respect to each Mortgaged Property, the
independent appraisals, prepared and delivered to the Administrative Agent at
the Borrower's sole cost and expense, conforming to the regulations promulgated
pursuant to FIRREA and USPAP and acceptable to the Administrative Agent in its
sole discretion..
"Appraised Value" means the "as-is" value of any Mortgaged Property as
indicated on the most recent Appraisal thereof.
<PAGE>
"Approved Cross-Collateralized Third-Party Loans" has the meaning set
forth in Section 8.8.
"Assignee" has the meaning set forth in Section 13.6(c).
"Assignments" means, the Assignment(s) of Leases, Rents and Security
Deposits, each executed by the Borrower or a Consolidated Subsidiary of the
Borrower in favor of the Administrative Agent on behalf of the Banks on or prior
to the date hereof or as of the date of acquisition of a Mortgaged Property,
securing all or a portion of the Loans.
"Availability" means, as at any time, an amount equal to the difference
of (a) the lesser of (i) the lesser of (A) sixty-five percent (65%) of the
Aggregate Mortgaged Property Value or (B) the Implied Mortgage Amount or (ii)
the Maximum Loan Amount and (b) the then outstanding aggregate principal amount
of the Loans.
"Availability Certificate" means a certificate in the form of Exhibit A
attached hereto delivered by the Borrower to the Administrative Agent pursuant
to Sections 3.1, 3.2 or 6.1(c), or or any other provision of this Agreement,
demonstrating the Borrower's calculation of Availability.
"Bank" means each Bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 13.6(c) and their respective
successors.
"Bank Due Diligence Package" has the meaning set forth in Section
3.3(c).
"Bankruptcy Code" means Title 11 of the United States Code, entitled
"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"Base Rate" means, on any day, the higher of (a) the prime rate of
interest per annum established from time to time by the Administrative Agent at
its principal office in Cleveland, Ohio and designated as its prime rate as in
effect on such day (which may be other than the lowest rate of interest then
charged by the Administrative Agent and whether or not such rate is publicly
announced) or (b) one-half of one percent (0.50%) per annum plus the Federal
Funds Rate in effect on such day.
"Base Rate Borrowing" means a Borrowing comprised of Base Rate Loans.
"Base Rate Loan" means a Loan to be made by a Bank as a Base Rate Loan
in accordance with the applicable Notice of Borrowing or pursuant to Article
XII.
"Benefit Plan" means at any time an employee pension benefit plan as
defined in Section 3(2) of ERISA (other than a Multiemployer Plan) in respect of
which a Person or an ERISA Affiliate of such Person is, or within the
immediately preceding five (5) years was, an "employer" as defined in Section
3(5) of ERISA.
<PAGE>
"Borrower" means Uni-Invest (U.S.A.) Partnership, L.P., a Delaware
limited partnership, and its successors.
"Borrower Financial Statements" has the meaning set forth in Section
6.1(a).
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower at the same time by the Banks pursuant to Article II.
"Broadbent" means Broadbent Business Center located in Salt Lake City,
Utah.
"Broadbent Transaction" means the occurrence of each of the following:
(a) repayment by Borrower of the first mortgage debt encumbering Broadbent,
which debt is expected to be approximately One Million Three Hundred Thousand
and 00/100 Dollars ($1,300,000.00); and (b) the addition of Broadbent to the
Mortgaged Properties in accordance with the terms of this Agreement.
"Capital Expenditures" means, for any period, any expenditure for any
item that would be treated or defined as a capital expenditure under GAAP or the
Code.
"Capital Lease" as applied to any Person means any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capital Lease Obligations" means all obligations under Capital Leases
in each case taken at the amount thereof accounted for as liabilities identified
as "capital lease obligations" (or any similar words) on a consolidated balance
sheet prepared in accordance with GAAP.
"Capital Reserve" means, as applied to any Person, the product of (a)
Twenty-Five Cents ($0.25) and (b) the aggregate net rentable square footage of
such Person's pro rata share (based upon ownership interest) of the Real
Property Assets, or the Mortgaged Properties, as applicable, owned by such
Person.
"Cash Equivalents" means marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by an
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one (1) year after the date of acquisition thereof.
<PAGE>
"Change in Control" means (a) any transaction or series of related
transactions in which any Person or two or more Persons (excluding Leo S.
Ullman, Brenda J. Walker, Uni-Invest Holdings (U.S.A.) B.V., a Netherlands
closed company, or any of their respective Affiliates) acting in concert acquire
beneficial ownership, directly or indirectly, of securities of the REIT (or of
other securities convertible into securities of the REIT) representing twenty
percent (20%) or more of the combined voting power of all securities of the REIT
entitled to vote in the election of directors ("Directors"); or (b) during any
period of up to twelve (12) consecutive calendar months commencing on or after
the Closing Date, individuals who were Directors at the beginning of such period
("Continuing Directors"), plus any new Directors whose election or appointment
was approved by a majority of the Continuing Directors then in office, shall
cease for any reason to constitute a majority of the Board of Directors and the
individuals replacing such Directors shall not have been nominated by the Board
of Directors of the REIT.
"Closing Date" means the date of this Agreement.
"Closing Due Diligence Package" has the meaning set forth in Section
3.4(a).
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Collateral" means all property and interests in property now owned or
hereafter acquired in or upon which a Lien has been or is purported or intended
to have been granted to the Administrative Agent on behalf of the Banks under
any of the Security Documents.
"Commitment" means, with respect to each Bank, the amount committed by
such Bank pursuant to this Agreement with respect to any Loans, as such amount
may be reduced from time to time pursuant to Section 2.11.
"Compliance Certificate" means a certificate in the form of Exhibit B
attached hereto delivered by the Borrower to the Administrative Agent pursuant
to Section 6.1(c) or any other provision of this Agreement covering the
Borrower's compliance with covenants contained in Article IX.
"Control", "controlling" or "controlled by" means, as to any Person,
the possession of the power, direct or indirect (a) to vote fifty-one percent
(51%) or more of the securities or partnership interests having ordinary voting
power for the election of directors, trustees or managing general partners or to
direct or cause the direction of the management and policies of such Persons
whether by contract or otherwise.
"Confirmation Letter" has the meaning set forth in Section 3.3(d).
"Consolidated Debt" means, at any time, the aggregate Debt of the
Consolidated Entities.
"Consolidated Debt Service" means, at any time, the aggregate Debt
Service of the Consolidated Entities.
<PAGE>
"Consolidated EBITDA" means, at any time, for the most recently ended
Fiscal Quarter, (a) the sum of the following, as determined in accordance with
GAAP, (i) Net Income (excluding Net Income or related items attributable to any
Minority Holding), (ii) depreciation and amortization expense, general and
administrative expenses and other non-cash items deducted in determining such
Net Income; provided, however, that for the determination of Consolidated EBITDA
for the first Fiscal Quarter, ending June 30, 2000, all general and
administrative expenses shall be excluded from the determination of Consolidated
EBITDA, and thereafter general and administrative expenses incurred during such
Fiscal Quarter may be included to the extent that the total general and
administrative expenses incurred during such Fiscal Quarter and the three (3)
preceding Fiscal Quarters in the aggregate do not exceed Five Hundred Thousand
and 00/100 Dollars ($500,000.00), (iii) Interest Expense, (iv) Taxes and (v) an
amount equal to the aggregate of each of the Consolidated Entities' pro rata
share (based upon ownership interest) of the sum of subparts (i) through (iv)
above of each Minority Holding for such Fiscal Quarter, minus (b) aggregate
interest income of the Consolidated Entities, minus (c) gains (and plus losses)
from extraordinary items, asset sales or write-ups or forgiveness of
indebtedness; provided, however, that if any Real Property Asset was not owned
by a Consolidated Entity for the entire Fiscal Quarter for which such
determination is being made, then the determination of Consolidated EBITDA for
such Fiscal Quarter shall disregard such Real Property Asset.
"Consolidated Entities" means, collectively, the Borrower, the REIT and
each of their respective Consolidated Subsidiaries.
"Consolidated Subsidiary" means, for any Person and at any date, any
wholly-owned Subsidiary or other wholly-owned entity that is consolidated with
such Person in accordance with GAAP.
"Consolidated Total Liabilities" means, at any time, the aggregate
Total Liabilities of the Consolidated Entities.
"Construction in Progress" means any new improvement on real property,
or any renovation to or expansion of any existing improvement on real property,
owned by a Person from the time of commencement of construction (as evidenced,
in the case of new construction or expansion, by the pouring of footers on the
foundation) until such time as a certificate of occupancy (or its equivalent)
has been issued with respect to all of such new improvement, renovation or
expansion, or the improvement, renovation or expansion otherwise may be legally
occupied.
"Contaminant" means any pollutant (as that term is defined in 42 U.S.C.
9601(33)) or toxic pollutant (as that term is defined in 33 U.S.C. 1362(13)),
hazardous substance (as that term is defined in 42 U.S.C. 9601(14)), hazardous
chemical (as that term is defined by 29 CFR Section 1910.1200(c)), toxic
substance, hazardous waste (as that term is defined in 42 U.S.C. 6903(5)),
radioactive material, special waste, petroleum (including crude oil or any
petroleum-derived substance, waste or breakdown or decomposition product
thereof), any constituent of any such substance or waste, including
polychlorinated biphenyls and asbestos, or any other substance or waste
deleterious to the environment the release, disposal or remediation of which is
now or at any time becomes subject to regulation under any Environmental Law.
<PAGE>
"Contingent Obligation" as to any Person means, without duplication,
(a) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (b) any obligation required
to be disclosed in the footnotes to such Person's financial statements,
guaranteeing partially or in whole any Debt, lease, dividend or other
obligation, exclusive of contractual indemnities (including any indemnity or
price-adjustment provision relating to the purchase or sale of securities or
other assets) and guarantees of non-monetary obligations (other than guarantees
of completion) which have not yet been called on or quantified, of such Person
or of any other Person. The amount of any Contingent Obligation described in
clause (b) shall be deemed to be (i) with respect to a guaranty of interest or
interest and principal, or an operating income guaranty, the sum of all payments
required to be made thereunder (which in the case of an operating income
guaranty shall be deemed to be equal to the debt service for the note secured
thereby), calculated at the Applicable Interest Rate, through (x) in the case of
an interest or interest and principal guaranty, the stated date of maturity of
the obligation (and commencing on the date interest could first be payable
thereunder), or (y) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (ii) with respect to all
guarantees not covered by the preceding clause (i), an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
guaranty is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of such Person required to be delivered
pursuant to Article VI hereof. Notwithstanding anything contained herein to the
contrary, guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for payment or performance has been made
thereunder, at which time any such guaranty of completion shall be deemed to be
a Contingent Obligation in an amount equal to any such claim. Subject to the
preceding sentence, (i) in the case of a joint and several guaranty given by
such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the Borrower), the amount of the guaranty
shall be deemed to be One Hundred Percent (100%) thereof unless and only to the
extent that such other Person has delivered cash or Cash Equivalents to secure
all or any part of such Person's guaranteed obligations, and (ii) in the case of
a guaranty (whether or not joint and several) of an obligation otherwise
constituting Debt of such Person, the amount of such guaranty shall be deemed to
be only that amount in excess of the amount of the obligation constituting Debt
of such Person. Notwithstanding anything contained herein to the contrary,
"Contingent Obligations" shall not be deemed to include guarantees of Unused
Commitments or of construction loans to the extent the same have not been drawn.
"Contractual Obligation" as applied to any Person, means any provision
of any securities issued by that Person, or any indenture, mortgage, deed of
trust, lease, contract, undertaking, document or instrument to which that Person
is a party or by which it or any of its properties is bound, or to which it or
any of its properties is subject (including any restrictive covenant affecting
such Person or any of its properties).
"Court Order" means any judgment, writ, injunction, decree, rule or
regulation of any court or Governmental Authority binding upon or applicable to
the Person in question.
<PAGE>
"Debt" of any Person means, without duplication, (a) as shown on such
Person's consolidated balance sheet (i) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property and (ii) all
indebtedness of such Person evidenced by a note, bond, debenture or similar
instrument, (b) the face amount of all letters of credit issued for the account
of such Person and, without duplication, all unreimbursed amounts drawn
thereunder, (c) all Contingent Obligations of such Person, (d) indebtedness
secured by any Lien on the properties or assets of the Person, (e) all payment
obligations of such Person under any interest rate protection agreement
(including any interest rate swaps, caps, floors, collars and similar
agreements) and currency swaps and similar agreements which were not entered
into specifically in connection with Debt set forth in clauses (a), (b) or (c)
hereof, (f) all Capital Lease Obligations, (g) all obligations in respect of
acceptances issued or created for the account of such Person and (h) items
classified as "debt" by GAAP and any obligations that have "debt-like"
characteristics, as determined by the Administrative Agent in its sole
discretion, including those that require regular payments and a lump sum
terminal payment, but excluding ordinary course accounts payable, deferred taxes
and accruals made in the ordinary course of the Person's business. For purposes
of this Agreement, Debt (other than Contingent Obligations) of a Person shall be
deemed to include only such Person's pro rata share (such share being based upon
the percentage ownership interest as shown on annual audited financial
statements) of the Debt of any other Person in which a Person, directly or
indirectly, owns an interest, provided that such Debt is nonrecourse, both
directly and indirectly, to such Person.
"Debt Service" means, for any Person, as of any date of determination,
for the most recently ended Fiscal Quarter, the sum of (a) Interest Expense paid
or payable by such Person on its Debt, (b) scheduled principal amortization
payments of such Person, on Debt secured by a mortgage on any Real Property
Asset, whether or not paid by such Person (excluding balloon payments), (c)
amortization paid or payable in connection with any interest rate protection
agreement (including any interest rate swaps, caps, floors, collars and similar
agreements) and (d) all dividends and distributions paid or required to be paid
on the preferred stock of such Person.
"Debt Service Coverage Ratio" means, as of any date of determination,
for the most recently ended Fiscal Quarter, the ratio of (a) Adjusted
Consolidated EBITDA to (b) Consolidated Debt Service.
"DOL" means the Department of Labor and any Person succeeding to the
functions thereof.
"Domestic Borrowing" means a Borrowing comprised of Base Rate Loans.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Cleveland, Ohio are authorized by law to
close.
<PAGE>
"Domestic Lending Office" means, as to each Bank, its office located
within the United States at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office within the United States as such Bank may
hereafter designate as its Domestic Lending Office by notice to the Borrower and
the Administrative Agent; provided that no Bank shall be permitted to change its
Domestic Lending Office if as a result of such change either (a) pursuant to the
provisions of Section 12.1 or Section 12.2, Borrower would be unable to maintain
any Loans as LIBOR Loans; or (b) Borrower would be required to make any payment
to such Bank pursuant to the provisions of Section 12.3 or Section 12.4.
"Due Diligence Package" has the meaning provided in Section 3.3(b).
"Environmental Affiliate" means any partnership, joint venture, limited
liability company, trust or corporation in which an equity interest is owned by
a Consolidated Entity, either directly or indirectly.
"Environmental Approvals" means any permit, license, approval, ruling,
variance, exemption or other authorization required under applicable
Environmental Laws.
"Environmental Claim" means, with respect to any Person, any notice,
claim, demand or similar communication (written or oral) by any other Person
alleging potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damage, property damage, personal
injuries, fines or penalties arising out of, based on or resulting from (a) the
presence, or release into the environment, of any Contaminant at any location,
whether or not owned by such Person or (b) circumstances forming the basis of
any violation, or alleged violation, of any Environmental Law, in each case as
to which could reasonably be expected to have a Material Adverse Effect on a
Consolidated Entity.
"Environmental Indemnity" means the Environmental Indemnity executed by
the Borrower and/or a Consolidated Subsidiary, if such Consolidated Subsidiary
owns the Real Property Asset, in favor of the Administrative Agent on behalf of
the Banks on or prior to the date hereof or as of the date of the addition of a
Real Property Asset to the Mortgaged Properties.
"Environmental Laws" means any and all current or future federal,
state, local and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans, injunctions, permits,
concessions, grants, franchises, licenses, agreements and other governmental
restrictions relating to the environment, the effect of the environment on human
health or to emissions, discharges or releases of Contaminants into the
environment including ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Contaminants or the clean-up or
other remediation thereof.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for (a) any liability under Environmental Laws or (b) damages arising
from, or costs incurred by such Governmental Authority in response to a Release
or threatened Release of a Contaminant into the environment.
"Environmental Report" has the meaning set forth in Section 4.7.
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute and the regulations
promulgated thereunder from time to time.
"ERISA Affiliate" means, as to any Person, any (a) corporation which
is, becomes, or is deemed to be a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Internal Revenue Code)
as such Person, (b) partnership, trade or business (whether or not incorporated)
which is, becomes or is deemed to be under common control (within the meaning of
Section 414(c) of the Internal Revenue Code) with such Person, (c) other Person
that is, becomes or is deemed to be, a member of the same "affiliated service
group" (as defined in Section 414(m) of the Internal Revenue Code) or (d) other
organization or arrangement described in Section 414(o) of the Internal Revenue
Code which is, becomes or is deemed to be required to be aggregated pursuant to
regulations issued under Section 414(o) of the Internal Revenue Code with such
Person pursuant to Section 414(o) of the Internal Revenue Code.
"ERISA Group" means the Borrower, the REIT and their respective ERISA
Affiliates.
"Event of Default" has the meaning set forth in Section 10.1.
"Exhibits" and "Schedules" means and refers collectively to the
documents attached to this Agreement and labeled as Exhibits or Schedules
hereto.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day, on such transactions as received by Administrative Agent from three (3)
Federal Funds brokers of recognized standing selected by Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"Fee Letter" means that certain letter dated as of the Closing Date
setting forth the fee agreement between the Borrower, the Administrative Agent
and the Banks, as the same may be amended, restated or otherwise modified from
time to time.
"Financial Statements" has the meaning set forth in Section 6.1(a).
<PAGE>
"Financing Statements" means those Uniform Commercial Code Financing
Statements executed by the Borrower or the Consolidated Subsidiary of Borrower
owning the Real Property Asset in favor of the Administrative Agent on behalf of
the Banks on or prior to the date hereof or as of the date of an addition of a
Real Property Asset to the Mortgaged Properties for the purpose of perfecting
the security interest in any personal property, both tangible and intangible,
serving as collateral for the Loans pursuant to any Loan Document.
"FIRREA" means the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended from time to time.
"Fiscal Quarter" means each three (3)-month period ending on March 31,
June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of the Borrower which shall be the
twelve (12)-month period ending on December 31 each year.
"FMV Cap Rate" means ten percent (10%).
"Funds Available for Distribution" means, for any period, Funds From
Operations, less Capital Expenditures.
"Funds from Operations" as applied to any Person, means, for any
period, "funds from operations" as such term is defined from time to time by The
National Association of Real Estate Investment Trusts.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Germantown" means Germantown Square Shopping Center located in
Louisville, Kentucky.
"Germantown Transaction" means the occurrence of each of the following:
(a) the acquisition by Borrower of the remaining undivided fifty percent (50%)
ownership interest in the Germantown assets at a purchase price expected to be
approximately Three Million Three Hundred Thousand and 00/100 Dollars
($3,300,000.00); and (b) the addition of Germantown to the Mortgaged Properties
in accordance with the terms of this Agreement.
"Governmental Authority" means any nation or government, any Federal,
state, local, municipal government or any other political subdivision thereof or
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
<PAGE>
"Group of Loans" means, at any time, a group of Loans consisting of (a)
all Loans which are Base Rate Loans at such time, or (b) all Loans which are
LIBOR Loans having the same Interest Period at such time; provided that, if a
Loan of any particular Bank is converted to or made as a Base Rate Loan pursuant
to Section 12.2 or Section 12.4, such Loan shall be included in the same Group
or Groups of Loans from time to time as it would have been in if it had not been
so converted or made.
"Homburg Subscription Agreement" has the meaning set forth in Section
3.1(q).
"Implied Mortgage Amount" means, as of any date of determination, the
quotient equal to (a) Adjusted NOI (b) divided by one and fifty one-hundredths
(1.50), (c) divided by the Mortgage Constant for such date of determination.
"Indemnitee" has the meaning set forth in Section 13.3(b).
"Initial Environmental Report" has the meaning set forth in Section
3.3(b)(viii).
"Interest Expense" means, for any period, the sum of (without
duplication) (a) total interest expense, whether paid, accrued or capitalized,
including all commissions, discounts and other fees and charges owed with
respect to letters of credit, net costs under interest rate protection
agreements (including any interest rate swaps, caps, floors, collars and similar
agreements), and fees payable to the Banks pursuant to Section 2.8(b) and (c),
(b) each of the Consolidated Entities' pro rata share of total interest expense,
whether paid, accrued or capitalized, in respect of Debt of each Minority
Holding (c) any other accrued, paid or capitalized interest incurred on any
obligation for which a Consolidated Entity is wholly or partially liable under
repayment, interest carry or performance guarantees, or other relevant
liabilities.
"Interest Period" means, relative to any LIBOR Loans comprising part of
the same Borrowing, the period beginning on and including the date on which such
LIBOR Loan is made as, converted into or continued as, LIBOR Loans, and ending
on (but excluding) the day which numerically corresponds to such date one (1)
month, three (3) months or six (6) months thereafter, in each case as Borrower
may select in its relevant Notice of Borrowing pursuant to Section 2.3, provided
that:
(i) if such Interest Period would otherwise end on a day which
is not a LIBOR Business Day, such Interest Period shall end on (but
exclude) the next following LIBOR Business Day;
(ii) Borrower may not select any Interest Period which ends
after the Maturity Date; and
(iii) any Interest Period relating to any LIBOR Loan that
begins on the last LIBOR Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last LIBOR
Business Day of a calendar month.
<PAGE>
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to hedge the position of the Borrower with
respect to interest rates.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute, and the rules and
regulations promulgated thereunder.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"Land" means unimproved real estate.
"Lease Status Schedule" means a list for each Mortgaged Property (a)
setting forth the percentage of leaseable area leased to bona fide, third-party
tenants under binding, and effective written leases and (b) identifying all
Major Leases at such Mortgaged Property.
"Leverage Ratio" means, as of any date of determination, the ratio of
(a) Consolidated Total Liabilities to (b) Total Asset Value.
"Liabilities and Costs" means all claims, judgments, liabilities,
obligations, responsibilities, losses, damages (including lost profits),
punitive or treble damages, costs, disbursements and expenses (including
reasonable attorneys', experts' and consulting fees and costs of investigation
and feasibility studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent, past, present or
future.
"LIBOR Borrowing" means a Borrowing comprised of LIBOR Loans.
"LIBOR Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"LIBOR Lending Office" means, as to each Bank, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its LIBOR Lending Office)
or such other office, branch or affiliate of such Bank as it may hereafter
designate as its LIBOR Lending Office by notice to the Borrower and the
Administrative Agent; provided that no Bank shall be permitted to change its
LIBOR Lending Office if as a result of such change either (i) pursuant to the
provisions of Section 12.1 or Section 12.2, Borrower would be unable to maintain
any Loans as LIBOR Loans; or (ii) Borrower would be required make any payment to
such Bank pursuant to the provisions of Section 12.3 or Section 12.4.
"LIBOR Loan" means a Loan as to which Borrower has elected, in
accordance with the applicable Notice of Borrowing or Notice of Interest Rate
Election, to be charged interest at the LIBOR Rate.
<PAGE>
"LIBOR Rate" means, relative to any Interest Period for any LIBOR Loan
included in any Borrowing, the per annum rate (reserve adjusted as hereinbelow
provided) of interest quoted by the Administrative Agent, rounded upwards, if
necessary, to the nearest one-sixteenth of one percent (0.0625%) at which Dollar
deposits in immediately available funds are offered by the Administrative Agent
to leading banks in the London interbank market at approximately 11:00 A.M.
Cleveland, Ohio time, two (2) Business Days prior to the beginning of such
Interest Period, for delivery on the first day of such Interest Period for a
period approximately equal to such Interest Period and in an amount equal or
comparable to the LIBOR Loan to which such Interest Period relates. The
foregoing rate of interest shall be reserve adjusted by dividing LIBOR by one
(1.00) minus the LIBOR Reserve Percentage, with such quotient to be rounded
upward to the nearest whole multiple of one-hundredth of one percent (0.01%).
All references in this Agreement or other Loan Documents to LIBOR include the
aforesaid reserve adjustment.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBOR Loans made by the Banks, the reserve percentage (expressed as a decimal)
equal to the actual aggregate reserve requirements (including all basic,
emergency, supplemental, marginal and other reserves and taking into account any
transactional adjustments or other scheduled changes in reserve requirements)
announced by the Banks as the reserve percentage applicable to the Banks as
specified under regulations issued from time to time by the Federal Reserve
Board. The LIBOR Reserve Percentage shall be based on Regulation D of the
Federal Reserve Board or other regulations from time to time in effect
concerning reserves for "Eurocurrency Liabilities" from related institutions as
though the Banks were in a net borrowing position.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance (including
easements, rights-of-way, zoning restrictions and the like), lien (statutory or
other), preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever, including any conditional sale or
other title retention agreement, the interest of a lessor under a Capital Lease,
any financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement or document having similar
effect (other than a financing statement filed by a "true" lessor pursuant to
the Uniform Commercial Code in effect in Ohio from time to time) naming the
owner of the asset to which such Lien relates as debtor, under the Uniform
Commercial Code in effect in Ohio from time to time or other comparable law of
any jurisdiction.
"Loan" means a Base Rate Loan or a LIBOR Loan, and "Loans" means Base
Rate Loans or LIBOR Loans or any combination of the foregoing.
"Loan Documents" means, collectively, this Agreement, the REIT
Guaranty, the Subsidiary Guarantees, the Notes, the Mortgages, the Assignments,
the Environmental Indemnities, the Financing Statements, the Management Fee
Subordination Agreement, the Fee Letter and any related documents.
<PAGE>
"Major Lease" means any lease between a Major Tenant and either the
Borrower or any Consolidated Subsidiary of the Borrower.
"Major Tenant" means any tenant of a Real Property Asset under a lease
between such tenant and the Borrower or any Consolidated Subsidiary of the
Borrower for twenty percent (20%) or more of the total gross leaseable area of
such Real Property Asset.
"Management Fee Subordination Agreement" means the Management Fee
Subordination Agreement delivered by the Manager to the Administrative Agent
subordinating the Manager's rights to any management fees payable to the Manager
by any Consolidated Entity to the Obligations, in a form satisfactory to the
Administrative Agent in its sole discretion.
"Manager" means Brentway Management LLC, a New York limited liability
company, and its successors.
"Margin Stock" shall have the meaning provided such term in Regulation
T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) with respect to a Person, a
material adverse effect upon the financial condition, operations, performance or
properties of such Person, or (b) with respect to a Real Property Asset, a
material adverse effect upon the value, condition or operation of such Real
Property Asset or (c) a material adverse effect upon any Consolidated Entities'
ability to perform under the Loan Documents. The phrase "has a Material Adverse
Effect" or "will result in a Material Adverse Effect" or words substantially
similar thereto shall in all cases be intended to mean "has resulted, or will or
could reasonably be anticipated to result, in a Material Adverse Effect", and
the phrase "has no (or does not have a) Material Adverse Effect" or "will not
result in a Material Adverse Effect" or words substantially similar thereto
shall in all cases be intended to mean "does not or will not or could not
reasonably be anticipated to result in a Material Adverse Effect".
"Material Plan" means at any time a Plan having aggregate Unfunded
Liabilities in excess of $5,000,000.
"Maturity Date" means the earliest to occur of (a) May __, 2002, (b)
the acceleration of the Loans pursuant to Section 10.2 or (c) Borrower's written
notice to the Administrative Agent pursuant to Section 2.11(c) of Borrower's
election to prepay all accrued Obligations and terminate all Commitments.
"Maximum Loan Amount" means the lesser of (a) Ten Million Dollars
($10,000,000) or (b) an amount equal to the then Total Commitment.
<PAGE>
"Minority Holdings" means, for any Person, partnerships, limited
liability companies, corporations and joint ventures held or owned by such
Person that are not wholly-owned by such Person and are not consolidated on such
Person's financial statements, but that the Administrative Agent, in its
reasonable discretion, has determined are effectively controlled by such Person.
"Mortgage Constant" means, as of any date of determination, a rate
equal to the sum of (a) the Treasury Rate for such date, plus (b) two hundred
(200) basis points, as amortized monthly pursuant to a twenty-five (25)-year
amortization schedule. For example purposes only, if the applicable Treasury
Rate was six percent (6%), after adding two hundred (200) basis points and
applying the twenty-five (25)-year amortization schedule, the Mortgage Constant
would be ninety-two thousand six hundred and eighteen one millionths (0.092618).
"Mortgaged Properties" means, as of any date, the Real Property Assets
meeting the conditions set forth in Section 3.3 and approved by the Banks in
accordance with Section 3.3, Real Property Assets listed in Exhibit C attached
hereto and made a part hereof, together with all Real Property Assets which have
become part of the Mortgaged Properties on or prior to such date in accordance
with Section 3.3 and excluding any Mortgaged Properties which have been released
from this Agreement, the Mortgage and the other Loan Documents as of such date
in accordance with Section 3.4(d) and all other terms of this Agreement.
"Mortgaged Property Aggregate Occupancy Rate" means, at any time with
respect to the Mortgaged Properties, the ratio, as of such time, expressed as a
percentage, of (a) the net leaseable square footage of all Mortgaged Properties
leased by tenants pursuant to binding leases as to which no monetary or other
material default has occurred and is continuing for more than sixty (60) days
from the original due date, to (b) aggregate net leaseable square footage of all
Mortgaged Properties.
"Mortgaged Property Closing Date" means the last to occur of the
following (a) the date upon which the Banks approve the addition of a Real
Property Asset to the Mortgaged Properties pursuant to Section 3.3, (b) the date
upon which the Banks approve the items required to be delivered by Borrower
pursuant to Section 3.4 and (c) the date upon which the appropriate Security
Documents are filed and/or recorded by the Administrative Agent in accordance
with Section 3.4(b).
"Mortgaged Property Statements" has the meaning set forth in Section
6.1(e).
"Mortgaged Property Value" means the sum of the Real Property Asset
Value for each of the Mortgaged Properties.
"Mortgages" means the mortgage(s), deed(s) to secure debt, and/or
deed(s) of trust executed by the Borrower or a Consolidated Subsidiary of the
Borrower in favor of the Administrative Agent on behalf of the Banks on or prior
to the date hereof or as of the date of the addition of a Real Property Asset to
the Mortgaged Properties, securing all or a portion of the Loans, each of which
Mortgages shall be a first mortgage lien with respect to each Real Property
Asset which is the subject thereof.
<PAGE>
"Multiemployer Plan" means at any time an employee benefit plan defined
in Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was contributed to by a Person or an ERISA Affiliate.
"NASDAQ" means the National Association of Securities Dealers Automated
Quotations System.
"Net Income" means, for any period, the net earnings (or loss) of the
Consolidated Entities, after Taxes and minority interests, calculated for such
period on a consolidated basis in conformity with GAAP.
"Net Offering Proceeds" means (a) all cash proceeds received by the
REIT as a result of the sale of common, preferred or other classes of stock in
the REIT (if and only to the extent reflected in stockholders' equity on the
consolidated balance sheet of the REIT prepared in accordance with GAAP) less
customary costs and discounts of issuance paid by the REIT plus (b) all cash and
the fair market value of the net equity of all properties contributed to the
REIT by one or more Persons in exchange for common, preferred or other class of
stock in the REIT.
"Net Operating Income" means, for any period, with respect to any
Mortgaged Property, Property Revenues minus Property Expenses attributable to
such Mortgaged Property for such period, in each case determined in accordance
with GAAP, except that, for purposes of determining Net Operating Income, (i)
income shall be calculated on a stabilized basis and shall not include security
or other deposits, late fees, lease termination or other similar charges,
delinquent rent recoveries (unless previously reflected in reserves), proceeds
of business interruption insurance or any other items of a non-recurring nature,
and (ii) to the extent any such Mortgaged Property is not owned by the Borrower
or a Consolidated Subsidiary of the Borrower for the entire period for which
such determination is being made, then the Net Operating Income for such
Mortgaged Property shall not be included for purposes of this definition.
"Non-Recourse Debt" means, as to any Person, Debt of such Person for
which the right of recovery of the obligee thereof is limited to recourse
against the Real Property Assets securing such Debt (subject to any limited
exceptions to the non-recourse nature of such Debt, including fraud,
misappropriation, misapplication and environmental indemnities, as are usual and
customary in like transactions at the time of the incurrence of such Debt).
"Notes" means, collectively, the promissory notes of the Borrower, each
substantially in the form of Exhibit D hereto, evidencing the obligation of the
Borrower to repay the Loans, and "Note" means any one of such promissory notes
issued hereunder.
"Notice of Borrowing" means, with respect to a proposed Borrowing
pursuant to Section 2.3, a notice substantially in the form of Exhibit E hereto.
"Notice of Interest Rate Election" means a notice substantially in the
form of Exhibit F. hereto.
<PAGE>
"NYSE" means the New York Stock Exchange.
"Obligations" means, from time to time, all Consolidated Debt of the
Consolidated Entities owing to the Administrative Agent, any Bank or any Person
entitled to indemnification pursuant to Section 13.3, or any of their respective
successors, transferees or assigns, of every type and description, whether or
not evidenced by any note, guaranty or other instrument, arising under or in
connection with this Agreement or any other Loan Document, whether or not for
the payment of money, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, reasonable attorneys' fees and
disbursements, reasonable fees and disbursements of expert witnesses and other
consultants, and any other sum now or hereinafter chargeable to Borrower under
or in connection with this Agreement or any other Loan Document.
"Parent" means, with respect to any Person, any other Person
controlling such Person.
"Participant" has the meaning set forth in Section 13.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to the functions thereof.
"Pennsylvania Acquisition Properties" means, collectively, the
following: (a) Red Lion Shopping Center, located in Philadelphia, Pennsylvania;
(b) The Point Shopping Center, located in Harrisburg, Pennsylvania; and (c)
Golden Triangle Shopping Center, located in Lancaster, Pennsylvania.
"Pennsylvania Acquisition Properties Purchase Agreements" has the
meaning set forth in Section 3.1(r).
"Permit" means any permit, approval, authorization, license, variance
or permission required from a Governmental Authority under an applicable
Requirement of Law.
"Permitted Debt" means:
(a) the Obligations; and
(b) Non-Recourse Debt; provided, that (i) the Non-Recourse Debt is owed
to institutional lenders, (ii) the Non-Recourse Debt is secured by a first lien
on collateral other than the Collateral, (iii) such collateral securing the
Non-Recourse Debt was acquired or re-financed with the proceeds of the
Non-Recourse Debt and (iv) the aggregate amount of all Non-Recourse Debt that is
Variable Rate Debt shall not exceed thirty-five percent (35%) of Consolidated
Total Liabilities (excluding the Obligations from Consolidated Total Liabilities
for this purpose);
provided, however, that Permitted Debt does not include any unsecured Debt or
Recourse Debt.
<PAGE>
"Permitted Liens" means:
(a) Liens (other than Environmental Liens and any Lien imposed under
ERISA) for taxes, assessments or charges of any Governmental Authority or claims
not yet due, or for any of the foregoing that are being contested in good faith
by appropriate proceedings;
(b) Liens (other than any Lien imposed under ERISA) incurred or
deposits made in the ordinary course of business (including surety bonds and
appeal bonds) in connection with workers' compensation, unemployment insurance
and other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of Debt), or
statutory obligations;
(c) any laws, ordinances, easements, rights of way, restrictions,
exemptions, reservations, conditions, limitations, covenants or other matters
that, in the aggregate, do not (i) materially interfere with the occupation, use
and enjoyment of the Property or other assets encumbered thereby, by the Person
owning such Property or other assets, in the normal course of its business or
(ii) materially impair the value of the Property subject thereto;
(d) Liens imposed by laws, such as mechanics' liens and other similar
liens arising in the ordinary course of business which secure payment of
obligations not more than sixty (60) days past due, or which are being contested
in good faith by appropriate proceedings;
(e) Liens in favor of the Administrative Agent for the benefit of the
Banks; and
(f) First priority Liens securing Non-Recourse Debt described in clause
(b) in the definition of Permitted Debt, but only if encumbering assets other
than the Collateral.
"Person" means any natural person, employee, corporation, limited
partnership, general partnership, joint stock company, limited liability
company, joint venture, association, company, trust, Bank, trust company, land
trust, business trust, or other organization, whether or not a legal entity, or
any other non-governmental entity, or any Governmental Authority.
"Plan" means any employee benefit plan defined in Section 3(3) of ERISA
(other than a Multiemployer Plan) in respect of which Borrower or any ERISA
Affiliate, as applicable, is an "employer" as defined in Section 3(5) of ERISA.
"Possible Default" means any condition, event, act or omission which,
with (a) the lapse of time or (b) the giving of notice or (c) both, would,
unless cured or waived, constitute an Event of Default.
<PAGE>
"Property Expenses" means, when used with respect to any Mortgaged
Property, the costs of maintaining such Mortgaged Property which are the
responsibility of the owner thereof and that are not, pursuant to the terms of a
binding lease, the responsibility of the tenant thereof, including a management
fee of not less than five percent (5%) of Property Revenues, taxes, insurance,
repairs and maintenance, but excluding depreciation, amortization, general
corporate administrative expenses and interest costs.
"Property Release" has the meaning set forth in Section 3.5.
"Property Revenues" means, when used with respect to any Mortgaged
Property, cash rents and other cash revenues receivable in the ordinary course
therefrom, including lease termination fees amortized over the remaining term of
the lease for which such termination fee was received (other than the paid rents
and revenues and security deposits except to the extent applied in satisfaction
of tenants' obligations for rent), but excluding rent that is more than sixty
(60) days in arrears.
"Quarterly Operating Reports" has the meaning set forth in Section
6.1(e).
"Rating Agency" means each of Standard & Poor's Rating Services,
Moody's Investors Service, Inc., Fitch Investors Service, L.P. and such other
nationally recognized rating service or services as may be mutually agreed upon
by the Borrower and the Administrative Agent.
"Real Property Assets" means, as of any time, all real property assets
satisfying the following requirements at such time: (a) the Borrower or a
Consolidated Subsidiary of the Borrower directly owns one hundred percent (100%)
of such real property asset and (b) the Borrower or such Consolidated Subsidiary
owns fee simple indefeasible title to such real property asset; and (c) the real
property asset is subject only to Permitted Liens.
"Real Property Asset Value" means, as of the date of determination, the
sum (without duplication of any item) of (a) an amount equal to (i) the Adjusted
Consolidated EBITDA for the most recently ended Fiscal Quarter (excluding Net
Income attributable to any Real Property Asset not owned by the Borrower or a
Consolidated Subsidiary of Borrower, as the case may be, for the entire most
recently ended Fiscal Quarter), times (ii) four (4), divided by (iii) the FMV
Cap Rate, plus (b) the Acquisition Price paid by the Borrower or a Consolidated
Subsidiary of Borrower, as the case may be, for any Real Property Asset acquired
during the most recently ended Fiscal Quarter.
"Recourse Debt" shall mean Debt of a Consolidated Entity that is not
Non-Recourse Debt.
"Regulations T, U and X" means Regulations T, U and X of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
"REIT" means Uni-Invest (U.S.A.), Ltd., a Maryland corporation, and its
successors.
"REIT Financial Statements" has the meaning set forth in Section
6.1(b).
<PAGE>
"REIT Guaranty" means the guaranty in the form of Exhibit G attached
hereto and made a part hereof executed and delivered by the REIT to the
Administrative Agent.
"Release" means the release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment or into or out of any property, including the
movement of Contaminants through or in the air, soil, surface water, groundwater
or property.
"Release Date" has the meaning set forth in Section 3.5.
"Remedial Action" means any action required by applicable Environmental
Laws to (a) clean up, remove, treat or in any other way address Contaminants in
the indoor or outdoor environment; (b) prevent the Release or threat of Release
or minimize the further Release of Contaminants so they do not migrate or
endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment; or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
"Required Banks" means, at any time, Banks having at least sixty-six
and two thirds percent (66.67%) of the aggregate amount of the Commitments or,
if the Commitments shall have been terminated, holding Notes evidencing at least
sixty-six and two thirds percent (66.67%) of the aggregate unpaid principal
amount of the Loans.
"Requirements of Law" means, as to any Person, the charter and by-laws,
partnership agreement or other organizational or governing documents of such
Person, and any law, rule or regulation, permit, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject, including the Securities Act, the Securities
Exchange Act, Regulations T, U and X, FIRREA, any restrictive covenants and any
certificate of occupancy, zoning ordinance, building, environmental or land use
requirement or permit or occupational safety or health law, rule or regulation.
"Securities Act" means the Securities Act of 1933, as amended to the
date hereof and from time to time hereafter, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended to the date hereof and any successor statute.
"Security Documents" means, collectively, the Mortgages, Assignments,
Environmental Indemnities and Financing Statements.
"Senior Officers" means Leo S. Ullman, as President of the REIT and
Brenda J. Walker, as Vice President of the REIT.
"Solvency Certificate" means a certificate in the form of Exhibit H
attached hereto.
<PAGE>
"Solvent" means, as to any Person at the time of determination, that
such Person (a) owns property the value of which (both at fair valuation and at
present fair saleable value) is greater than the amount required to pay all of
such Person's liabilities (including contingent liabilities and debts); (b) is
able to pay all of its debts as such debts mature; and (c) has capital
sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage.
"Subordination, Non-Disturbance and Attornment Agreement" has the
meaning set forth in Section 3.4(a)(ix).
"Subsidiary" means, as to any Person, any corporation or other entity
of which securities or other ownership interests representing either (i)
ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions or (ii) a majority of the economic interest
therein, are at the time directly or indirectly owned by such Person.
"Subsidiary Guarantor" means any Consolidated Subsidiary that executes
a Subsidiary Guaranty.
"Subsidiary Guaranty" means a guaranty of payment and performance
executed by a Consolidated Subsidiary in favor of the Administrative Agent and
the Banks in the form of Exhibit I attached hereto, as such guaranty may be
amended, restated or otherwise modified from time to time.
"Survey" means a survey (prepared in accordance with the ALTA-ASCM
standards adopted in 1999, together with all Table A Items) for each Mortgaged
Property, prepared and certified to the Administrative Agent, or re-certified to
the Administrative Agent, on a date not earlier than six (6) months prior to the
date of the applicable Mortgage Property Closing Date, by a land surveyor duly
licensed in the state in which such Mortgaged Property is located.
"Tangible Net Worth" means, at any time of determination, an amount
equal to Total Asset Value minus Total Liabilities.
"Taxes" means all federal, state and local net income and gross
receipts taxes.
"Term" has the meaning set forth in Section 2.9.
<PAGE>
"Termination Event" means (a) any Reportable Event, (b) the withdrawal
of a Person, or an ERISA Affiliate from a Benefit Plan during a plan year in
which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA,
(c) the occurrence of an obligation arising under Section 4041 of ERISA of a
Person or an ERISA Affiliate of such Person to provide affected parties with a
written notice of an intent to terminate a Benefit Plan in a distress
termination described in Section 4041(c) of ERISA, (d) the institution by the
PBGC of proceedings to terminate any Benefit Plan under Section 4042 of ERISA,
(e) any event or condition which constitutes grounds under Section 4042 of ERISA
for the appointment of a trustee to administer a Benefit Plan, (f) the partial
or complete withdrawal of such Person or any ERISA Affiliate of such Person from
a Multiemployer Plan, or (g) the adoption of an amendment by any Person or any
ERISA Affiliate of such Person to terminate any Benefit Plan.
"Title Company" means, with respect to each Mortgaged Property, a title
insurance company of recognized national standing, acceptable to the
Administrative Agent.
"Title Commitment" means, for each Mortgaged Property, a commitment for
a Title Policy issued by the Title Company.
"Title Policy" means, with respect to each Mortgaged Property, an ALTA
Mortgagee's Title Policy (Form B - 1970 Amended 10-17-70) issued by the Title
Company to the Administrative Agent or, if such form is not available in the
state in which the Mortgaged Property is located, then such other form as is
approved by the Administrative Agent and its counsel.
"Total Asset Value" means, as of the date of determination, the sum
(without duplication of any item) of (a) the Real Property Asset Value and (b)
unrestricted cash and Cash Equivalents owned by any Consolidated Entity as of
the most recently ended Fiscal Quarter (but excluding any tenant deposits).
"Total Commitments" means, at any time, the then aggregate Commitments
of all of the Banks.
"Total Liabilities" means, for any Person and at any time, (without
duplication) the sum of (a) all Debt of such Person and each of its Consolidated
Subsidiaries and (b) such Person's pro rata share of all Non-Recourse Debt of
each Minority Holding.
"Treasury Rate" means, as of any date, a rate equal to the annual yield
to maturity on the U.S. Treasury Constant Maturity Series with a ten (10)-year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
- -- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the
Administrative Agent shall select, in its reasonable discretion, an alternate
basis for the determination of Treasury yield for U.S. Treasury Constant
Maturity Series with ten (10)-year maturities.
<PAGE>
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Unused Commitments" means an amount equal to all unadvanced funds
which any third party is obligated to advance to the Borrower or otherwise,
pursuant to any Loan Document, written instrument or otherwise.
"Unused Facility Fee" has the meaning set forth in Section 2.8(c).
"USPAP" means the Uniform Standards of Professional Appraisal Practice,
as amended from time to time.
"Variable Rate Debt" means Debt of any Person that by its terms is
subject to an interest rate that is not fixed until the maturity of such Debt,
but fluctuates from time to time.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made and all required to be
delivered hereunder shall be prepared in accordance with GAAP, applied on a
basis consistent (except for changes concurred in by the Borrower's or REIT's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower or the REIT delivered to the Administrative
Agent and the Banks; provided that, if the Borrower notifies the Administrative
Agent and the Banks that the Borrower wishes to amend any covenant in Article IX
to eliminate the effect of any change in GAAP on the operation of such covenant
(or if the Administrative Agent notifies the Borrower that the Required Banks
desire to amend Article IX for such purpose), then the Borrower's compliance
with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Banks.
SECTION 1.3. Interpretation. Words of any gender shall include the
other gender and the neuter. Whenever the singular is used, the same shall
include the plural wherever appropriate, and whenever the plural is used, the
same shall also include the singular wherever appropriate. The word "including",
"includes" or any variation thereof shall be construed as a term of illustration
and not a term of limitation. For example, the term "including" shall be deemed
to mean "including, without limitation" and "including, but not limited to."
SECTION 1.4. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement by reference to the pricing of Loans
comprising such Borrowing (i.e., Domestic Borrowings and LIBOR Borrowings).
<PAGE>
ARTICLE II
THE LOANS
SECTION 2.1. Commitments to Lend. (a) Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make the Loans to the
Borrower pursuant to this Agreement from time to time up to and including the
ninetieth (90th) day prior to the expiration of the Term in amounts such that
the aggregate principal amount of the Loans by such Bank at any one time
outstanding shall not exceed the amount of its Commitment. The aggregate amount
of the Loans to be made hereunder shall not exceed the lesser of (i) the Maximum
Loan Amount or (ii) the Availability. Subject to the limitations set forth
herein, each Borrowing under this Section 2.1(a) shall be in an aggregate
principal amount of at least Five Hundred Thousand Dollars ($500,000), and shall
be made from the several Banks ratably in proportion to their respective
Commitments. Subject to the limitations set forth herein, including Section 2.2,
any amounts repaid may be reborrowed. Notwithstanding anything to the contrary,
the number of Base Rate Borrowings shall be limited to three (3) such Borrowings
per month and the number of LIBOR Borrowings shall be limited to one (1) such
Borrowing per month subject to Section 2.15 and this Section 2.1, provided, that
there shall be no more than five (5) Borrowings of all types of Loans
outstanding at any time under this Agreement.
(b) Notwithstanding anything in the preceding subparagraph (a) to the
contrary, the Maximum Loan Amount shall in no event exceed (and no Bank shall be
deemed to have committed to fund its pro rata share of an amount which exceeds)
an amount which would result in the violation of any provision of Article IX.
(c) The outstanding balance of the Loans shall be payable in full on
the Maturity Date.
SECTION 2.2. Restrictions on Borrowings.
(a) Subject to the terms and conditions of this Agreement, initially
Borrowings shall be permitted under this Agreement, on a non-revolving basis,
only for the limited purposes of completing the Broadbent Transaction and the
Germantown Transaction. The Banks acknowledge that Germantown is subject to a
buy-sell agreement and that, in lieu of the Borrower buying the other
co-tenant's interest in Germantown, the other co-tenant of Germantown may elect
to purchase the Borrower's fifty percent (50%) interest.
(b) After completion of the Broadbent Transaction and the Germantown
Transaction (or the Borrower's sale of its fifty percent (50%) interest in
Germantown, as the case may be), provided that the Seven Million Five Hundred
Thousand and 00/100 Dollars ($7,500,000.00) equity investment contemplated by
the Homburg Subscription Agreement has been paid to the Borrower, Borrowings
shall be permitted, on a non-revolving basis, under this Agreement only for the
limited purpose of adding the Pennsylvania Acquisition Properties to the
Mortgaged Properties.
<PAGE>
(c) After all of the Pennsylvania Acquisition Properties have been
added to the Mortgaged Properties, Borrowings shall be permitted, on a
non-revolving basis, under this Agreement only for working capital and leasing
costs for Mortgaged Properties until the then outstanding principal balance of
the Loans is reduced to an amount less than Two Million Five Hundred Thousand
and 00/100 Dollars ($2,500,000.00). After such reduction, Borrowings shall be
permitted on a revolving credit basis in accordance with and subject to the
terms of this Agreement. Notwithstanding the foregoing, all Borrowings under
this Agreement shall be subject to the Availability requirements set forth in
this Agreement.
SECTION 2.3. Notice of Borrowing. The Borrower shall give the
Administrative Agent notice (a "Notice of Borrowing") not later than 11:00 A.M.
(Cleveland, Ohio time) (a) one (1) Domestic Business Day before each Base Rate
Borrowing or (b) the third LIBOR Business Day before each LIBOR Borrowing, and
in either case not more than five (5) Domestic Business Days or LIBOR Business
Days, as applicable, prior to the proposed funding date of such Borrowing,
specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a LIBOR Business
Day in the case of a LIBOR Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be
Base Rate Loans or LIBOR Loans, and
(iv) in the case of a LIBOR Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
SECTION 2.4. Notice to Banks; Funding of Loans. (a) Upon receipt of a
Notice of Borrowing, the Administrative Agent shall notify each Bank on the same
day as it receives the Notice of Borrowing of the contents thereof and of such
Bank's share of such Borrowing and such Notice of Borrowing shall not thereafter
be revocable by the Borrower.
(b) Not later than 11:00 A.M. (Cleveland, Ohio time) on the date of
each Borrowing designated by the Borrower in its Notice of Borrowing, each Bank
shall make available its share of such Borrowing, in Federal or other funds
immediately available in Cleveland, Ohio, to the Administrative Agent at its
address referred to in Section 12.1, but in no event earlier than two (2)
Domestic Business Days following such Bank's receipt of the applicable Notice of
Borrowing. The Administrative Agent will make the funds so received from the
Banks available to the Borrower at the Administrative Agent's aforesaid address.
<PAGE>
(c) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 2.4 and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, a rate
per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.7 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in such Borrowing for purposes of this Agreement.
(d) Nothing in this Section 2.4 shall be deemed to relieve any Bank of
its obligation hereunder to make its pro rata share of each Loan on any date of
Borrowing designated by the Borrower in a duly completed and delivered Notice of
Borrowing, nor shall any Bank be responsible for the failure of any other Bank
to perform its obligations to make any Loan hereunder and the Commitment of any
Bank shall not be increased or decreased as a result of the failure by any other
Bank to perform its obligation to make a Loan.
(e) If all conditions to the making of Loans have been satisfied, the
Administrative Agent shall disburse the proceeds of Loans, on the funding date
designated in the applicable Notice of Borrowing, by wire transfer to such
account as may be specified in Borrower's Notice of Borrowing. All Loans made
hereunder shall bear interest from the date of funding thereof.
(f) Borrower shall provide the Administrative Agent with documentation
satisfactory to the Administrative Agent indicating the names of those employees
of Borrower authorized by Borrower to sign Notices of Borrowing and the
Administrative Agent shall be entitled to rely on such documentation until
notified in writing by Borrower of any change(s) of the persons so authorized.
The Administrative Agent shall be entitled to act on the instructions of anyone
identifying himself or herself as one of the Persons authorized to execute a
Notice of Borrowing, and Borrower shall be bound thereby in the same manner as
if such Person were actually so authorized. Borrower agrees to indemnify, defend
and hold the Banks and the Administrative Agent harmless from and against any
and all Liabilities and Costs which may arise or be created by the acceptance of
instructions in any Notice of Borrowing, unless caused by the gross negligence
or willful misconduct of the Person to be indemnified. The employees so
authorized on the date hereof are listed on Schedule 2.4(f) attached hereto and
made a part hereof.
SECTION 2.5. Notes. (a) The Loans shall be evidenced by the Notes, each
of which shall be payable to the order of each Bank for the account of its
Applicable Lending Office in an amount equal to each such Bank's Commitment.
<PAGE>
(b) Upon receipt of each Bank's Note, the Administrative Agent shall
forward such Note to such Bank. Each Bank shall record the date, amount, type
and maturity of each Loan made by it and the date and amount of each payment of
principal made by the Borrower with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note, endorse on
the schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding; provided
that the failure of any Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Notes. Each
Bank's record thereof shall be conclusive absent manifest error. Each Bank is
hereby irrevocably authorized by the Borrower so to endorse its Note and to
attach to and make a part of its Note a continuation of any such schedule as and
when required.
SECTION 2.6. Maturity of Loans. The Loans shall mature, and the
principal amount thereof shall be due and payable, on the Maturity Date.
SECTION 2.7. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a fluctuating rate per annum equal to
the Base Rate for such day plus the Applicable Margin. Such interest shall be
payable by the Borrower, in the manner provided in Section 2.12, in arrears on
the first Domestic Business Day of the first calendar month following the
Closing Date, the first Domestic Business Day of each succeeding calendar month
and on the Maturity Date.
(b) Each LIBOR Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of the LIBOR Rate for such Interest Period plus
the Applicable Margin. Notwithstanding anything to the contrary contained herein
and subject to the default interest provisions contained in Section 2.7 (d) and
(e), if an Event of Default occurs and as a result thereof the Commitments are
terminated, all LIBOR Loans will convert to Base Rate Loans upon the expiration
of the applicable Interest Period therefor or the date all Loans become due,
whichever occurs first. Such interest shall be payable by the Borrower, in the
manner provided in Section 2.12, in arrears on the first LIBOR Business Day of
the first calendar month following the Closing Date, on the first LIBOR Business
Day of each succeeding calendar month and on the Maturity Date.
(c) Notwithstanding the rates of interest and payment dates specified
in Section 2.7(a) and (b), effective immediately upon the occurrence and during
the continuance of any Event of Default that has not been waived in writing by
the Required Banks, the principal balance of all Loans then outstanding and, to
the extent permitted by applicable law, any interest payments on the Loans not
paid when due, shall bear interest payable upon demand at a rate which is four
percent (4%) per annum in excess of the highest rate under any Base Rate Loan or
LIBOR Loan (including the Applicable Margin) under this Agreement. All other
amounts due the Administrative Agent or the Banks (whether directly or for
reimbursement) under this Agreement or any of the other Loan Documents if not
paid when due, or if no time period is expressed, if not paid within ten (10)
days after demand, shall bear interest from and after demand at the rate set
forth in this Section 2.7(c).
<PAGE>
(d) The Borrower acknowledges that late payment to the Administrative
Agent will cause the Administrative Agent and the Banks to incur costs not
contemplated by this Agreement. Such costs include, without limitation,
processing and accounting charges. Therefore, if the Borrower fails timely to
pay any sum due and payable hereunder through the Maturity Date (other than
payment of the entire outstanding balance of the Loans on the Maturity Date),
and such failure continues for five (5) days, and unless waived by the
Administrative Agent or the Required Banks a late charge of ten percent (10%) of
any such principal payment, interest or other charge due hereon and which is not
paid when due, shall be charged by Administrative Agent (for the benefit of the
Banks) and paid by the Borrower for the purpose of defraying the expense
incident to handling such delinquent payment. The Borrower and the
Administrative Agent agree that this late charge represents a reasonable sum
considering all of the circumstances existing on the date hereof and represents
a fair and reasonable estimate of the costs that the Administrative Agent and
the Banks will incur by reason of late payment. The Borrower and the
Administrative Agent further agree that proof of actual damages would be costly
and inconvenient. Acceptance of any late charge shall not constitute a waiver of
the default with respect to the overdue installment, and shall not prevent the
Administrative Agent from exercising any of the other rights available hereunder
or under any other Loan Document. Such late charge shall be paid without
prejudice to any other rights of the Administrative Agent or the Banks.
(e) Interest shall be computed on the basis of the actual number of
days elapsed in the period during which interest or fees accrue and a year of
three hundred sixty (360) days. In computing interest on any Loan, the date of
the making of the Loan shall be included and the date of payment shall be
excluded; provided, that if a Loan is repaid on the same day on which it is
made, one (1) day's interest shall be paid on that Loan.
(f) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the Banks of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of manifest error.
(g) Notwithstanding any provision in this Section 2.7, interest in
respect of any Loan shall not exceed the maximum rate permitted by applicable
Requirements of Law.
SECTION 2.8. Fees.
(a) Commitment Fee. The Borrower shall pay the Administrative Agent for
the account of the Banks ratably in proportion to their respective Commitments,
such fees as are provided for in the Fee Letter(s) between the Borrower and/or
Administrative Agent and the Bank(s) as in existence from time to time.
(b) Administrative Agent Fees. The Borrower shall pay the
Administrative Agent such fees as are provided for in the Fee Letter between the
Administrative Agent and the Borrower, as in existence from time to time.
<PAGE>
(c) Unused Commitment Fee. From and after the Closing Date and until
the Obligations are paid in full and this Agreement is terminated or, if sooner,
the date the Commitments terminate, the Borrower shall pay to the Administrative
Agent for the account of each Bank, a fee (the "Unused Facility Fee") accruing
at the per annum rate set forth in the table below upon an amount equal to (i)
the Total Commitments minus (ii) the average daily principal balance of all
Loans, as determined for each Fiscal Quarter. The Unused Facility Fee shall be
payable, in the manner provided in Section 2.12, in arrears on the first
Business Day in each Fiscal Quarter, beginning with the first Fiscal Quarter
after the Closing Date, and ending on the date of payment in full of all
Obligations to the Administrative Agent and the Banks or, if sooner, the date
the Commitments terminate, with the Unused Facility Fee to be prorated to the
date of such final payment.
- ---------------------------------------------------------------------------
Outstanding Principal Amount of Loans Unused Commitment Fee
- ---------------------------------------------------------------------------
< 33% of the Total Commitments 37.5 basis points
- ---------------------------------------------------------------------------
> 33 and < 67% of the Total Commitments 20.0 basis points
- ---------------------------------------------------------------------------
> 67% of the Total Commitments 12.5 basis points
- ---------------------------------------------------------------------------
(d) Payment of Fees. The fees described in this Section 2.8 represent
compensation for services rendered and to be rendered separate and apart from
the lending of money or the provision of credit and do not constitute
compensation for the use, detention or forbearance of money, and the obligation
of the Borrower to pay the fees described herein shall be in addition to, and
not in lieu of, the obligation of the Borrower to pay interest, other fees and
expenses otherwise described in this Agreement. All fees shall be payable when
due in immediately available funds and shall be non-refundable when paid. If the
Borrower fails to make any payment of fees or expenses specified or referred to
in this Agreement due to the Administrative Agent or the Banks, including those
referred to in this Section 2.8 or otherwise under this Agreement or any
separate fee agreement between the Borrower and the Administrative Agent
relating to this Agreement, when due, the amount due shall bear interest until
paid at the Base Rate and, after ten (10) days, at the rate specified in Section
2.7(c) (but not to exceed the maximum rate permitted by applicable Law), and
shall constitute part of the Obligations. The Unused Facility Fee shall be
calculated on the basis of the actual number of days elapsed in a three hundred
sixty (360) day year.
SECTION 2.9. Maturity Date. The term (the "Term") of the Commitments
shall terminate and expire on the Maturity Date.
<PAGE>
SECTION 2.10. Mandatory Prepayment. (a) In the event that a Mortgaged
Property is sold, refinanced by another lender or otherwise released from the
Lien of the applicable Mortgage in accordance with Section 3.4(d) hereof, the
Borrower shall, on or before the Release Date pursuant to Section 3.4(d), prepay
to the Administrative Agent, for the account of the Banks, an amount equal to
the amount necessary to insure that the aggregate principal amount of Loans
outstanding does not exceed the Availability as set forth in an Availability
Certificate to be delivered to the Administrative Agent as provided in Section
3.4(d). Failure to make any such payment after the sale or refinancing of a
Mortgaged Property in violation of this Section 2.10 shall constitute an Event
of Default.
(b) In the event that the Availability is less than zero as of the last
day of a Fiscal Quarter, either (i) the Borrower will add one or more Real
Property Assets, as necessary, to the Mortgaged Properties in accordance with
this Agreement which, on a pro forma basis (i.e. the Availability shall be
recalculated to include such Real Property Assets as though the same had been a
Mortgaged Property for the entire applicable period) would result in the
Availability equaling or exceeding zero or (ii) the Borrower shall prepay to the
Administrative Agent, for the account of the Banks, an amount necessary to cause
the Availability to equal or exceed zero within ninety (90) days of the date on
which the Availability was less than zero. Failure by the Borrower to cause the
Availability to equal or exceed zero within ninety (90) days of the date such
Availability was less than zero shall be an Event of Default.
SECTION 2.11. Optional Prepayments. (a) The Borrower may, upon at least
three (3) Domestic Business Day's notice to the Administrative Agent, prepay to
the Administrative Agent, for the account of the Banks, any Base Rate Borrowing
in whole at any time, or in part from time to time, by paying the principal
amount to be prepaid together with accrued interest thereon to but not including
the date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Borrowing.
(b) Except as provided in Section 11.2, the Borrower may not prepay all
or any portion of the principal amount of any LIBOR Loan prior to the maturity
thereof unless the Borrower shall also pay any applicable expenses pursuant to
Section 2.13. Any such prepayment shall be upon at least three (3) LIBOR
Business Days' notice to the Administrative Agent. Each such optional prepayment
shall be in the amounts set forth in Section 2.11(a) above and shall be applied
to prepay ratably the Loans of the Banks included.
(c) Subject to the provisions of Section 2.2, any amounts so prepaid
pursuant to this Section 2.11 may be reborrowed subject to the other terms of
this Agreement.
SECTION 2.12. General Provisions as to Payments. (a) During the Term,
subject to the terms of this Agreement (including Section 2.2), Borrower shall
make payments of interest only, and, upon Maturity, Borrower shall pay all
outstanding principal and interest on the Loans in accordance with the terms of
this Agreement.
<PAGE>
(b) The Borrower shall make each payment of principal of, and interest
on, the Loans and of fees hereunder, not later than 12:00 Noon (Cleveland, Ohio
time) on the date when due, in Federal or other funds immediately available in
Cleveland, Ohio, to the Administrative Agent at its address referred to in
Section 12.1. The Administrative Agent will distribute to each Bank its ratable
share of each such payment received by the Administrative Agent for the account
of the Banks on the same day as received by the Administrative Agent if received
by the Administrative Agent by 3:00 p.m. (Cleveland, Ohio time), or, if received
by the Administrative Agent after 3:00 p.m. (Cleveland, Ohio time), on the
immediately following Domestic Business Day. Whenever any payment of principal
of, or interest on, the Base Rate Loans or of fees shall be due on a day which
is not a Domestic Business Day, the date for payment thereof shall be extended
to the next succeeding Domestic Business Day. Whenever any payment of principal
of, or interest on, the LIBOR Loans shall be due on a day which is not a LIBOR
Business Day, the date for payment thereof shall be extended to the next
succeeding LIBOR Business Day unless such LIBOR Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding LIBOR Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
(c) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date an amount
equal to the amount then due such Bank. If and to the extent that the Borrower
shall not have so made such payment, each Bank shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Administrative Agent, at
the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower makes any payment of
principal with respect to any LIBOR Loan on any day other than the last day of
the Interest Period applicable thereto, or if the Borrower fails to borrow any
LIBOR Loans, after notice has been given to any Bank in accordance with Section
2.4(a), the Borrower shall reimburse each Bank within fifteen (15) days after
demand for any resulting loss or expense incurred by it (or by an existing
Participant in the related Loan; provided that no Participant shall be entitled
to receive more than the Bank with respect to which such Participant is a
Participant would be entitled to receive under this Section 2.13), including any
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
failure to borrow, provided that such Bank shall have delivered to the Borrower
a certificate as to the amount of such loss or expense and the calculation
thereof, which certificate shall be conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest and fees shall
be computed on the basis of the actual number of days elapsed in the period
during which interest or fees accrue and a year of three hundred sixty (360)
days. In computing interest on any Loan, the date of the making of the Loan
shall be included and the date of payment shall be excluded; provided, that if a
Loan is repaid on the same day on which it is made, one (1) day's interest shall
be paid on that Loan. Notwithstanding any provision in this Section 2.14,
interest in respect of any Loan shall not exceed the maximum rate permitted by
applicable law.
<PAGE>
SECTION 2.15. Method of Electing Interest Rates. (a) The Loans included
in each Borrowing shall bear interest initially at the type of rate specified by
the Borrower in the applicable Notice of Borrowing. Thereafter, the Borrower may
from time to time elect to change or continue the type of interest rate borne by
each Group of Loans (subject in each case to the provisions of Article XII), as
follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to LIBOR Loans as of any LIBOR Business Day;
(ii) if such Loans are LIBOR Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans
as LIBOR Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent at least three (3) LIBOR Business
Days before the conversion or continuation selected in such notice is to be
effective (unless the relevant Loans are to be continued as Base Rate Loans, in
which case such notice shall be delivered to the Administrative Agent no later
than 11:00 a.m. (Cleveland, Ohio time) at least one (1) Domestic Business Day
before such conversion or continuation is to be effective). A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
is allocated ratably among the Loans comprising such Group, (ii) the portion to
which such notice applies, and the remaining portion to which it does not apply,
are each at least One Million Dollars ($1,000,000), (iii) there shall be no more
than five (5) Borrowings in the aggregate, comprised of not more than four (4)
LIBOR Borrowings, outstanding at any time under this Agreement, (iv) no Loan may
be continued as, or converted into, a LIBOR Loan when any Event of Default has
occurred and is continuing, and (v) no Interest Period shall extend beyond the
Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the
applicable clause of subsection (a) above and shall be a Domestic
Business Day;
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if such new Loans are LIBOR Loans, the
duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as LIBOR Loans for an
additional Interest Period, the duration of such additional Interest
Period.
<PAGE>
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall notify
each Bank on the same day as it receives such Notice of Interest Rate Election
of the contents thereof and such notice shall not thereafter be revocable by the
Borrower. If the Borrower fails to deliver a timely Notice of Interest Rate
Election to the Administrative Agent for any Group of LIBOR Loans, such Loans
shall be converted into Base Rate Loans on the last day of the then current
Interest Period applicable thereto.
ARTICLE III
CONDITIONS
SECTION 3.1. Conditions to Initial Disbursement of Loans. The
obligation of the Banks to make the initial disbursement of the Loans shall be
subject to satisfaction (or waiver in writing by the Administrative Agent) of
each of the following conditions precedent on or before the Closing Date:
(a) Borrower's Documents. The Borrower shall have executed and/or
delivered (or caused to be delivered) to the Administrative Agent each of the
following, in form and substance acceptable to the Administrative Agent in its
sole discretion:
(i) four (4) duly executed original counterparts of this
Agreement;
(ii) a duly executed original of a Note in favor of each of
the Banks;
(iii) a copy of the Borrower's Limited Partnership Agreement,
as amended to the Closing Date, as certified by the Secretary or
Assistant Secretary of the REIT, as general partner of the Borrower;
(iv) a certified copy of the Borrower's Certificate of Limited
Partnership from the Delaware Secretary of State, dated as of a date no
earlier than thirty (30) days prior to the Closing Date;
(v) a Certificate of Good Standing for the Borrower from the
Delaware Secretary of State, dated as of a date no earlier than thirty
(30) days prior to the Closing Date;
(vi) a Certificate of Status of a Foreign Limited Partnership
from the Secretary of State of each jurisdiction in which Borrower owns
a Real Property Asset that is to become a Mortgaged Property upon the
Closing Date, dated as of a date no earlier than thirty (30) days prior
to the Closing Date;
<PAGE>
(vii) the partnership resolutions of the Borrower, as
certified by the Secretary or Assistant Secretary of the REIT, as
general partner of the Borrower (re: authorization to execute and
perform the Loan Documents);
(viii) Borrower Financial Statements for the most recent
Fiscal Year and, if the end of the immediately preceding Fiscal Quarter
does not coincide with the end of the most recent Fiscal Year, for the
most recent Fiscal Quarter, prepared on a consolidated and
consolidating basis, unaudited but certified by the Borrower's chief
financial officer or chief accounting officer; and
(ix) a fully executed copy of the Advisory Fee Subordination
Agreement and Management Fee Subordination Agreement.
(b) REIT Documents. The REIT shall have executed and/or delivered (or
caused to be delivered) to the Administrative Agent each of the following, in
form and substance acceptable to the Administrative Agent in its sole
discretion:
(i) a duly executed REIT Guaranty;
(ii) a copy of the REIT's Articles of Incorporation, as
certified by the Maryland Secretary of State, as of a date no earlier
than thirty (30) days prior to the Closing Date;
(iii) the By-Laws or Code of Regulations of the REIT as
certified by its Secretary;
(iv) a Certificate of Good Standing from the Maryland
Secretary of State, dated as of a date no earlier than thirty (30) days
prior to the Closing Date;
(v) the corporate resolutions of the REIT, as certified by its
Secretary (re: authorization to execute the Loan Documents as general
partner of Borrower and execute and perform the REIT Guaranty);
(vi) an Incumbency Certificate as to the officers of the REIT
signing Loan Documents on behalf of the REIT, as general partner of the
Borrower, and the Guaranty on behalf of the REIT on its own account;
and
(vii) REIT Financial Statements for the most recent Fiscal
Year and, if the end of the immediately preceding Fiscal Quarter does
not coincide with the end of the most recent Fiscal Year, for the most
recent Fiscal Quarter, prepared on a consolidated and consolidating
basis, unaudited but certified by the Borrower's chief financial
officer or chief accounting officer.
<PAGE>
(c) Notice of Borrowing. The Borrower shall have delivered to the
Administrative Agent a Notice of Borrowing.
(d) Performance. Each of the Borrower and the REIT shall have performed
in all material respects all agreements and covenants required by the
Administrative Agent or the Banks to be performed by it on or before the Closing
Date.
(e) Solvency. Each of the Borrower and the REIT shall be Solvent and
shall have delivered to the Administrative Agent a Solvency Certificate to that
effect.
(f) Material Adverse Changes. No change, as determined by the
Administrative Agent and the Banks, shall have occurred since December 31, 1999,
which has a Material Adverse Effect on the Borrower or the REIT.
(g) Litigation Proceedings. There shall not have been instituted or
threatened, since December 31, 1999, any litigation or proceeding in any court
or Governmental Authority affecting or threatening to affect the Borrower or the
REIT which has a Material Adverse Effect thereon, as reasonably determined by
the Administrative Agent and the Banks.
(h) Indefeasible Title. The Borrower and each of its Consolidated
Subsidiaries has good, merchantable fee and indefeasible fee title to all Real
Property Assets owned by it, in each case free and clear of all Liens other than
Permitted Liens.
(i) No Event of Default. On the Closing Date and after giving effect to
the initial disbursements of the Loans, no Event of Default or Possible Default
shall exist.
(j) Fees. The Administrative Agent and each Bank shall have received
all fees then due under this Agreement or the Fee Letter, and the Borrower shall
have performed all of its other obligations as set forth in the Loan Documents
to make payments to the Administrative Agent and the Banks on or before the
Closing Date and all expenses (including reasonable attorneys' fees and
expenses) of the Administrative Agent and the Banks incurred prior to such
Closing Date shall have been paid by the Borrower.
(k) Opinion of Counsel. The Administrative Agent shall have received a
favorable opinion of counsel (which may, as to certain matters, be rendered by
in-house counsel) for the Borrower and the REIT dated as of the Closing Date, in
form and substance satisfactory to the Administrative Agent, the Banks and their
counsel, in their sole discretion.
(l) Consents and Approvals. All material licenses, permits, consents,
regulatory approvals and corporate action necessary to enter into the financing
transactions contemplated by this Agreement shall have been obtained by the
Borrower and the REIT.
<PAGE>
(m) Due Diligence. The Administrative Agent and the Banks shall have
completed such due diligence investigations as the Administrative Agent or any
Bank deems necessary, and such review and investigations shall provide the
Administrative Agent and the Banks with results and information which, in the
Administrative Agent's and each Bank's determination, are satisfactory to permit
the Administrative Agent and the Banks to enter into this Agreement and fund the
Loans.
(n) Representations and Warranties. All representations and warranties
contained in this Agreement and the other Loan Documents shall be true and
correct in all material respects.
(o) Compliance with Covenants. The Administrative Agent shall have
received a certificate of the chief financial officer or the chief accounting
officer of the Borrower certifying that the Borrower is in compliance with all
covenants of the Borrower contained in this Agreement, including a Compliance
Certificate certifying compliance with the financial covenants contained in
Article XIX.
(p) Availability Certificate. The Administrative Agent shall have
received an Availability Certificate demonstrating Availability under the Loans.
(q) Homburg Subscription Agreement. The Administrative Agent shall have
received a fully-executed agreement satisfactory to the Administrative Agent, in
its sole discretion, pursuant to which the Homburg/Uni-Invest Group shall
purchase from the REIT Seven Million Five Hundred Thousand and 00/100 Dollars
($7,500,000.00) of shares in the REIT (the "Homburg Subscription Agreement").
(r) Purchase Agreements for the Pennsylvania Acquisition Properties.
The Administrative Agent shall have received fully executed purchase agreements
satisfactory to the Administrative Agent, in its sole discretion, for Borrower's
or any of its Consolidated Subsidiary's acquisition of each of the Pennsylvania
Acquisition Properties (collectively, the "Pennsylvania Acquisition Properties
Purchase Agreements").
SECTION 3.2. Borrowings. (a) The obligation of any Bank to make a Loan
on the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(i) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.3 and, if not previously delivered
with respect to the account to which the proceeds of such Loan are to
be wire transferred, a certificate, with respect to such account;
(ii) immediately after such Borrowing, the Availability will
not be less than zero as demonstrated by an Availability Certificate to
be delivered with the Notice of Borrowing and with respect to each
Bank, such Bank's pro rata portion of the Loans will not exceed such
Bank's Commitment;
<PAGE>
(iii) immediately before and after such Borrowing, no Possible
Default or Event of Default shall have occurred and be continuing both
before and after giving effect to the making of such Loans;
(iv)the representations and warranties of each of the
Consolidated Entities contained in this Agreement (other than
representations and warranties which speak as of a specific date) shall
be true and correct in all material respects on and as of the date of
such Borrowing both before and after giving effect to the making of
such Loans;
(v) no law or regulation shall have been adopted, no order,
judgment or decree of any governmental authority shall have been
issued, and no litigation shall be pending or threatened, which does
or, with respect to any threatened litigation, seeks to enjoin,
prohibit or restrain the making or repayment of the Loans or the
consummation of the transactions contemplated hereby;
(vi)no event, act or condition shall have occurred after the
Closing Date which, in the reasonable judgment of the Administrative
Agent or the Required Banks, has had or is likely to have a Material
Adverse Effect; and
(vii) any applicable conditions set forth in Section 2.2.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(ii) through (vi) of this Section 3.2 (a) (except that with respect to clause
(v), such representation and warranty shall be deemed to be limited to laws,
regulations, orders, judgments, decrees and litigation affecting the
Consolidated Entities and not solely the Banks).
(b) Subsidiary Guaranty. To the extent that the proceeds of any Loan
requested are to be used to purchase or acquire a Real Property Asset that will
be owned or held by a Consolidated Subsidiary of the Borrower, the
Administrative Agent shall have received, on or before the date of funding set
forth in the applicable Notice of Borrowing each of the following, in form and
substance acceptable to the Administrative Agent:
(i) a Subsidiary Guaranty duly executed by such Consolidated
Subsidiary;
(ii) organizational documents from such Subsidiary Guarantor,
certified by an authorized officer of such Subsidiary Guarantor;
(iii) a certificate of Good Standing, or its equivalent, for
such Subsidiary Guarantor dated as of a date no earlier than thirty
(30) days prior to the date of funding set forth in the applicable
Notice of Borrowing;
<PAGE>
(iv) certified resolutions from each Subsidiary Guarantor, (v)
an incumbency certificate as to the officer of such Subsidiary
Guarantor signing the Subsidiary Guaranty on behalf of such Subsidiary
Guarantor; and
(vi) a favorable opinion of counsel (which may, as to certain
matters, be rendered by in-house counsel) for the Consolidated
Subsidiary, dated as of the funding, in form and substance satisfactory
to the Administrative Agent, the Banks and their respective counsel.
SECTION 3.3. Conditions Precedent to Additional Mortgaged Properties.
(a) Each real property asset to be added to the Mortgaged Properties shall be
subject to approval by the Banks pursuant to Section 3.3(c) and shall meet the
following conditions, unless otherwise agreed by the Banks:
(i) The real property asset shall be a Real Property Asset;
(ii) The Real Property Asset shall be an office or industrial
property, or if a retail property, an Anchored Shopping Center;
(iii) The Acquisition Price for the Real Property Asset shall
not exceed Fifteen Million Dollars ($15,000,000);
(iv) After addition of such Real Property Asset to the
Mortgaged Properties, no more than two (2) Mortgaged Properties shall
be located within a three (3) mile radius of another Mortgaged
Property;
(v) Immediately after the addition of such Real Property Asset
to the Mortgaged Properties, no Possible Default or Event of Default
shall have occurred and be continuing after giving effect to such
addition;
(vi) If such Real Property Asset is owned or to be owned by a
Consolidated Subsidiary, such Consolidated Subsidiary represents and
warrants, and by delivery of its Subsidiary Guaranty, Mortgage and
other Loan Documents executed by such Consolidated Subsidiary shall be
deemed to have represented and warranted, that it has not and shall
not: (x) engage in any business or activity other than the ownership,
operation and maintenance of the Real Property Asset, and activities
incidental thereto; or (y) acquire or own any material asset other than
(A) the Real Property Asset, and (B) such incidental personal property
as may be necessary for the operation of the Real Property Asset; and
(vii) The Closing Due Diligence Package for such Real Property
Asset shall have been submitted by Borrower and approved by the Banks
and their respective counsel pursuant to Section 3.4, and otherwise the
requirements of Section 3.4 shall have been satisfied.
<PAGE>
(b) The Borrower shall submit to the Administrative Agent, by overnight
mail, the materials set forth below (the "Due Diligence Package") relating to
each Real Property Asset proposed to be added to the Mortgaged Properties. The
Due Diligence Package shall include the following:
(i) a summary description of the Real Property Asset,
including a legal description;
(ii) an initial investment memorandum prepared by the Borrower
in connection with the Real Property Asset in form and substance
satisfactory to the Administrative Agent;
(iii) a request for a flood zone certification;
(iv) two (2) years of historical cash flow operating
statements, if available, or the tax returns for the prior two (2)
years;
(v) two (2) years pro forma projections (including capital
expenditures);
(vi) a road map and site plan, including any existing Survey;
(vii) a copy of all leases affecting the Real Property Asset
and a current Lease Status Schedule;
(viii) a Phase I environmental report dated as of a date not
more than three (3) months prior to the date the Due Diligence Package
is delivered to the Administrative Agent, addressed to the
Administrative Agent and issued by a licensed and nationally recognized
environmental engineering firm concluding that no Phase II
environmental report is recommended or, if a Phase II environmental
report is recommended, a completed Phase II report addressed to the
Administrative Agent with a conclusion that no remediation is necessary
or desirable (collectively, the "Initial Environmental Report");
(ix) an engineer's inspection report reasonably satisfactory
and addressed to the Administrative Agent; and
(x) a request for an Appraisal.
The Borrower shall permit the Administrative Agent at all reasonable times and
upon reasonable prior notice to make an inspection of such Real Property Asset.
<PAGE>
(c) Within ten (10) days after the receipt by the Administrative Agent
of the Appraisal, the Administrative Agent will distribute to each of the Banks,
by overnight mail, for their review and approval, the following materials (the
"Bank Due Diligence Package") relating to each Real Property Asset to be added
to the Mortgaged Properties. The Bank Due Diligence Package shall include the
following:
(i) the Appraisal;
(ii) the Initial Environmental Report;
(iii) the engineer's inspection report reasonably satisfactory
and addressed to the Administrative Agent;
(iv) the summary description of the Real Property Asset;
(v) copies of all Major Leases; and
(vi) if received, a flood zone certification.
A Bank may reject a Real Property Asset proposed to be added to the Mortgaged
Properties only if (A) the Real Property Asset does not meet all of the
conditions specified in Section 3.3(a), or (B) the Appraisal is not satisfactory
based on such Bank's internal appraisal review policies and procedures, or (C)
the Initial Environmental Report or engineer's inspection report discloses
conditions that, in the sole discretion of such Bank, would be reasonably likely
to have a Material Adverse Effect or (D) the terms and conditions of each of the
Major Leases are not satisfactory to the Bank in its sole discretion. Failure to
respond to the Administrative Agent in writing by any Bank within ten (10) days
after receipt of the Bank Due Diligence Package, shall be deemed to be an
approval by such Bank of the addition of such Real Property Asset as a Mortgaged
Property. Upon the written request of any Bank, the Administrative Agent will
deliver to such Bank, by overnight mail, a copy of the Due Diligence Package,
the Confirmation Letter or the Closing Due Diligence Package, as may be
specified in such request. If the Borrower's request is not approved, each
disapproving Bank shall furnish to the Borrower, upon request, a written
statement of the reasons for disapproval by such Bank.
(d) Within three (3) days after the receipt by the Administrative Agent
of the approval of the Banks (by deemed approval or otherwise), the
Administrative Agent shall send to the Borrower a letter (the "Confirmation
Letter") confirming the approval of the Banks to the Borrower's request for the
addition of the proposed Real Property Asset to the Mortgaged Properties.
SECTION 3.4. Mortgaged Properties. (a) At least fifteen (15) calendar
days prior to the Mortgaged Property Closing Date, the Borrower shall cause to
be delivered to the Administrative Agent, at the Borrower's sole cost and
expense, the following materials (the "Closing Due Diligence Package"), which
must be acceptable in form and substance to the Administrative Agent and its
counsel, in Administrative Agent's sole discretion:
(i) the Title Commitment and the Survey;
<PAGE>
(ii) a good standing certificate (or equivalent) as to the
Borrower, or as to the Consolidated Subsidiary that owns or will own
the Real Property Asset, for the jurisdiction in which the Real
Property Asset is located;
(iii) evidence of compliance with zoning and other local laws,
consisting of a zoning endorsement to the Title Commitment or a legal
opinion;
(iv) a Subsidiary Guaranty, if applicable;
(v) evidence of property insurance with coverages and in
amounts reasonably acceptable to the Administrative Agent;
(vi) the federal tax identification number for the
Consolidated Subsidiary owning such Real Property Asset, if applicable;
(vii) an opinion of counsel and/or local counsel to the
Borrower licensed to practice in the jurisdiction in which the Real
Property Asset is located, if required by the Administrative Agent, as
to such matters as the perfection and enforceability of the Security
Documents and as to the authority and organization of Borrower and any
Subsidiary Guarantor, if applicable;
(viii) executed copies of each of the Security Documents for
each Real Property Asset to be added to the Mortgaged Properties;
(ix) a subordination, non-disturbance and attornment agreement
substantially in the form attached as Schedule 3.4(a)(ix), or otherwise
in form and substance acceptable to the Administrative Agent, in its
sole discretion, from each Major Tenant of the Real Property Asset and
any guarantor of such Major Tenant's obligations under such Major
Tenant's lease; and
(x) Borrower's definitive investment memorandum.
<PAGE>
(b) As soon as practicable after approval by the Banks of the items
identified in Section 3.4(a), and satisfaction of the conditions and
requirements set forth in Article III in connection with the addition of a
proposed Mortgaged Property and any associated Borrowing, the Administrative
Agent shall cause all of the Mortgages, the Assignments and the Financing
Statements to be recorded and/or filed in the appropriate offices, as security
for the Loans, at the Borrower's sole cost and expense. As soon as possible
after the Closing Date, Borrower shall cause the Title Company to deliver to the
Administrative Agent the Title Policy, and Borrower agrees that the closing
instructions to the Title Company shall require that the Title Company use its
best efforts to deliver the Title Policy to the Administrative Agent not later
than ten (10) days after the Mortgaged Property Closing Date. The Borrower will
cooperate with the Administrative Agent and execute such further instruments and
documents and perform such further acts as the Administrative Agent or the Title
Company shall reasonably request to carry out the creation and perfection of the
liens and security interests contemplated by the Security Documents or this
Agreement. Such Real Property Assets shall be deemed to be Mortgaged Properties
upon the recording and filing of such Security Documents and the Administrative
Agent's receipt of satisfactory evidence thereof.
(c) With respect to any Mortgaged Property, (i) if the Administrative
Agent determines, in its reasonable judgment, that a material adverse change in
the value of any Mortgaged Property has occurred, or if (ii) any Mortgaged
Property fails to maintain an occupancy rate of at least eighty percent (80%)
for two (2) consecutive Fiscal Quarters, then the Administrative Agent shall
have the right to commission, at the Borrower's sole cost and expense, an
updated Appraisal. The Administrative Agent shall deliver copies of each such
Appraisal to each Bank and to the Borrower promptly after receipt thereof by the
Administrative Agent. The Borrower shall have the right, at any time, to replace
the Appraisal for any Mortgaged Property with an updated Appraisal, at the
Borrower's sole cost and expense.
SECTION 3.5. Release of Mortgaged Properties. The Borrower shall be
entitled to have one (1) or more of the Mortgaged Properties released from the
Lien of the applicable Mortgage, whether in connection with a sale of such
Mortgaged Property to an unaffiliated third party, the refinancing of such
Mortgaged Property with a third party lender (if such refinancing would be
Permitted Debt) or otherwise; provided that all of the conditions set forth
below have been satisfied:
(a) the Administrative Agent shall have received from the
Borrower at least ten (10) days' prior written notice of the date
proposed for such release (the "Release Date");
(b) no Event of Default or Possible Default shall have
occurred and be continuing as of the date of such notice and the
Release Date;
(c) the Borrower shall have delivered to the Administrative
Agent an Availability Certificate with calculations giving effect to
the requested release(s);
(d) the Borrower shall have delivered to the Administrative
Agent a Compliance Certificate with calculations giving effect to the
requested release(s) and demonstrating compliance with all covenants
contained in Article IX;
(e) the Borrower shall have delivered to the Administrative
Agent an officer's certificate, dated the Release Date, confirming the
matters referred to in clause (ii) above and certifying that the
provisions of clauses (iii) and (iv) above have been complied with; and
(f) if applicable, the Borrower shall have delivered to the
Administrative Agent on or before the Release Date the amount required
by Section 2.10(b)(ii).
<PAGE>
If the Availability Certificate delivered in accordance with clause (c) above
demonstrates Availability of not less than zero, then upon or concurrently with
the satisfaction of all the foregoing conditions, the Administrative Agent shall
effectuate the following (hereinafter referred to as a "Property Release"): the
security interest of the Administrative Agent in favor of the Banks in the
Mortgage and other Loan Documents relating to the released Mortgaged Property
shall be released from the Lien of the Mortgage and the Administrative Agent
will execute and deliver any agreements reasonably requested by the Borrower to
release and terminate or reassign, at the Borrower's option, the Mortgage as to
the released Mortgaged Property; provided, that such release and termination or
reassignment shall be without recourse to the Administrative Agent (except as
contemplated hereby) and without any representation or warranty (except that the
Administrative Agent shall be deemed to have represented that such release and
termination or reassignment has been duly authorized and that it has not
assigned or encumbered the Mortgage or the other Loan Documents relating to the
released Mortgaged Property (except as contemplated hereby)); provided, further,
that upon the release and termination or reassignment of the Administrative
Agent's security interest in the Mortgage relating to the released Mortgaged
Property all references herein to the Mortgage relating to the released
Mortgaged Property shall be deemed deleted, except as otherwise provided herein
with respect to indemnities.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
AS TO THE BORROWER
In order to induce the Administrative Agent and each of the other Banks
which may become a party to this Agreement to make the Loans, the Borrower and
each of its Consolidated Subsidiaries makes the following representations and
warranties as of the date hereof. Such representations and warranties shall
survive the effectiveness of this Agreement, the execution and delivery of the
other Loan Documents and the making of the Loans.
SECTION 4.1. Organization and Power. The Borrower and each Consolidated
Subsidiary of the Borrower (a) is a corporation, limited partnership or a
limited liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation, (b) is duly qualified to do
business as a foreign corporation, limited partnership or a limited liability
company and in good standing under the laws of each jurisdiction in which (i)
any Real Property Asset is located or (ii) it owns or leases other real property
or in which the nature of its business requires it to be so qualified, except
for such other jurisdictions where failure to so qualify and be in good standing
would not have a Material Adverse Effect on the Borrower any Consolidated
Subsidiary of the Borrower or any Real Property Asset and (c) has all requisite
corporate, partnership or limited liability company power and authority to own
and operate its property and assets and to conduct its business as presently
conducted and as proposed to be conducted in connection with and following the
consummation of the Loans contemplated by the Loan Documents.
<PAGE>
SECTION 4.2. Power and Authority. The Borrower and each Consolidated
Subsidiary of the Borrower has the requisite corporate, partnership or limited
liability company power and authority to execute, deliver and perform each of
the Loan Documents to which it is or will be a party. The execution, delivery
and performance thereof, and the consummation of the transactions contemplated
thereby, have been duly approved by the partners or board of directors of the
Borrower and each Consolidated Subsidiary of the Borrower, as the case may be,
and no other proceedings or authorizations on the part of the Borrower, the
Consolidated Subsidiaries of the Borrower or their respective partners or boards
of directors, as the case may be, are necessary to consummate such transactions.
Each of the Loan Documents to which the Borrower or any Consolidated Subsidiary
of the Borrower is a party has been duly executed and delivered by the Borrower
or such Consolidated Subsidiary of the Borrower, as applicable, and constitutes
its legal, valid and binding obligation, enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency and other laws affecting
creditors' rights generally.
SECTION 4.3. No Violation. The execution, delivery and performance by
the Borrower and each Consolidated Subsidiary of the Borrower of the Loan
Documents to which it is or will be a party, and each of the transactions
contemplated thereby, do not and will not (a) conflict with or violate its
articles of incorporation or by-laws, limited partnership agreement, certificate
of limited partnership, operating agreement or other organizational documents,
as the case may be, or (b) conflict with, result in a breach of or constitute
(with or without notice or lapse of time or both) a default under any
Requirement of Law, Contractual Obligation or Court Order of or binding upon the
Borrower or such Consolidated Subsidiary, or (c) require termination of any
Contractual Obligation or (d) result in or require the creation or imposition of
any Lien whatsoever upon any of the properties or assets of the Borrower or such
Consolidated Subsidiary (other than Liens in favor of the Administrative Agent
on behalf of the Banks arising pursuant to the Loan Documents or the Security
Documents or Permitted Liens).
SECTION 4.4. Financial Information. (a) The unaudited consolidated
balance sheet of the Borrower as of December 31, 1999, when delivered to the
Administrative Agent shall fairly present, in conformity with GAAP, the
consolidated financial position of the Borrower as of such date and its
consolidated results of operations for such fiscal year.
(b) Since December 31, 1999, (i) there has been no Material Adverse
Effect upon the business, financial position or results of operations of the
Borrower or any Consolidated Subsidiary of the Borrower and (ii) except as
previously disclosed to the Administrative Agent, the Borrower has not incurred
any material Debt.
<PAGE>
SECTION 4.5. Litigation. (a) There is no action, suit, proceeding,
governmental investigation or arbitration, at law or in equity, or before or by
any Governmental Authority, pending or, to the best of the Borrower's knowledge,
threatened against the Borrower, any Consolidated Subsidiary of the Borrower or
any Real Property Asset of the Borrower or any Consolidated Subsidiary of the
Borrower, which if adversely determined would (i) result in a Material Adverse
Effect on the Borrower, any Consolidated Subsidiary of the Borrower or any such
Real Property Asset, (ii) materially and adversely affect the ability of any
party to any of the Loan Documents to perform its obligations thereunder or
(iii) materially and adversely affect the ability of the Borrower to perform its
obligations contemplated in the Loan Documents.
(b) Neither the Borrower nor any Consolidated Subsidiary of the
Borrower is (i) in violation of any applicable law, which violation has a
Material Adverse Effect on the Borrower, any Consolidated Subsidiary of the
Borrower or any of the Real Property Assets or (ii) subject to or in default
with respect to any Court Order which has a Material Adverse Effect on the
Borrower, any Consolidated Subsidiary of the Borrower or any of the Real
Property Assets. There are no material Proceedings pending or, to the best of
the Borrower's knowledge, threatened against the Borrower, any Consolidated
Subsidiary of the Borrower or any of the Real Property Assets, which, if
adversely decided, would have a Material Adverse Effect on the Borrower, any
Consolidated Subsidiary of the Borrower or any of the Real Property Assets.
(c) There are no final nonappealable judgments or decrees in an
aggregate amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) or
more entered by a court or courts of competent jurisdiction against the Borrower
or any Consolidated Subsidiary of the Borrower (other than any judgment as to
which, and only to the extent, a reputable insurance company has acknowledged
coverage of such claim in writing).
SECTION 4.6. Compliance with ERISA. (a) Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
(b) Except for each "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) that is maintained, or contributed to, by one or more
members of the ERISA Group, no member of the ERISA Group is a "party in
interest" (as such term is defined in Section 3(14) of ERISA or a "disqualified
person" (as such term is defined in Section 4975(e)(2) of the Code) with respect
to any funded employee benefit plan and none of the assets of any such plans
have been invested in a manner that would cause the transactions contemplated by
the Loan Documents to constitute a nonexempt prohibited transaction (as such
term is defined in Section 4975 of the Code or Section 406 of ERISA).
<PAGE>
(c) Neither the Borrower nor any ERISA Affiliate thereof has in the
past five (5) years maintained or contributed to or currently maintains or
contributes to any Benefit Plan other than the Benefit Plans identified on
Schedule 4.6(c). Neither the Borrower nor any ERISA Affiliate thereof has during
the past five (5) years maintained or contributed to or currently maintains or
contributes to any employee welfare benefit plan within the meaning of Section
3(l) of ERISA which provides benefits to retirees other than benefits required
to be provided under Section 4980B of the Internal Revenue Code and Sections 601
through 608 of ERISA (or any successor provisions thereto). Neither the Borrower
nor any ERISA Affiliate thereof is now contributing nor has it ever contributed
to or been obligated to contribute to any Multiemployer Plan, no employees or
former employees of the Borrower, or such ERISA Affiliate have been covered by
any Multiemployer Plan in respect of their employment by the Borrower, and no
ERISA Affiliate of the Borrower has or is likely to incur any withdrawal
liability with respect to any Multiemployer Plan which would have a Material
Adverse Effect on the Borrower.
SECTION 4.7. Environmental Compliance. To the best of the Borrower's
knowledge, except as set forth in the Phase I environmental report(s) delivered
to and accepted by the Administrative Agent with respect to each of the
Mortgaged Properties (as supplemented or amended, the "Environmental Reports"),
(i) there are in effect all Environmental Approvals which are required to be
obtained under all Environmental Laws with respect to the Mortgaged Properties,
except for such Environmental Approvals the absence of which would not have a
Material Adverse Effect, (ii) the Borrower and each Consolidated Subsidiary of
the Borrower is in compliance in all material respects with the terms and
conditions of all such Environmental Approvals, and is also in compliance in all
material respects with all other Environmental Laws or any plan, order, decree,
judgment, injunction, notice or demand letter issued, entered or approved
thereunder, except to the extent failure to comply would not have a Material
Adverse Effect.
Except as set forth in the Environmental Reports or otherwise disclosed
to the Administrative Agent as of the date that any Real Property Asset becomes
a Mortgaged Property, to Borrower's actual knowledge:
(i) There are no Environmental Claims or investigations
pending or threatened by any Governmental Authority with respect to any
alleged failure by the Borrower or any Consolidated Subsidiary of the
Borrower to have any Environmental Approval required in connection with
the conduct of the business of the Borrower or any Consolidated
Subsidiary of the Borrower on any of the Mortgaged Properties, or with
respect to any generation, treatment, storage, recycling,
transportation, Release or disposal of any Contaminant generated by the
Borrower or any Consolidated Subsidiary of the Borrower or any lessee
on any of the Mortgaged Properties;
(ii) No Contaminant has been Released at any of the Mortgaged
Properties to an extent that it may reasonably be expected to have a
Material Adverse Effect;
(iii) No PCB (in amounts or concentrations which exceed those
set by applicable Environmental Laws) is present at any of the
Mortgaged Properties;
(iv) No friable asbestos is present at any of the Mortgaged
Properties;
<PAGE>
(v) There are no underground storage tanks for Contaminants,
active or abandoned, at any of the Mortgaged Properties;
(vi) No Environmental Claims have been filed with a
Governmental Authority with respect to any of the Mortgaged Properties,
and none of the Mortgaged Properties is listed or proposed for listing
on the National Priority List promulgated pursuant to CERCLA, on
CERCLIS or on any similar state list of sites requiring investigation
or clean-up;
(vii) There are no Liens arising under or pursuant to any
Environmental Laws on any of the Mortgaged Properties, and no
government actions have been taken or are in process which could
subject any of the Mortgaged Properties to such Liens; and
(viii) There have been no environmental investigations,
studies, audits, tests, reviews or other analyses conducted by, or
which are in the possession of, the Borrower or any Consolidated
Subsidiary of the Borrower in relation to any of the Mortgaged
Properties which have not been made available to the Administrative
Agent.
SECTION 4.8. Taxes. All tax returns and reports to be filed by the
Borrower or any Consolidated Subsidiary of the Borrower have been timely filed,
and all Taxes, assessments, fees and other governmental charges shown on such
returns or otherwise payable by the Borrower or any Consolidated Subsidiary of
the Borrower have been paid when due and payable (other than real property
taxes, which may be paid prior to delinquency so long as no penalty or interest
shall attach thereto), except such taxes, if any, as are reserved against in
accordance with GAAP and are being contested in good faith by appropriate
proceedings or such taxes, the failure to make payment of which when due and
payable will not have, in the aggregate, a Material Adverse Effect on the
Borrower or any Consolidated Subsidiary of the Borrower. Neither the Borrower
nor any Consolidated Subsidiary of the Borrower has any knowledge of any
proposed tax assessment against it that will have a Material Adverse Effect on
the Borrower or any Consolidated Subsidiary of the Borrower, which is not being
actively contested in good faith by the Borrower or any Consolidated Subsidiary
of the Borrower.
SECTION 4.9. Full Disclosure. The representations and warranties of the
Borrower contained in the Loan Documents and all certificates, financial
statements and other documents delivered to the Administrative Agent or the
Banks in connection therewith, do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading. Neither the Borrower nor any Consolidated Subsidiary of
the Borrower has intentionally withheld any material fact from the
Administrative Agent or the Banks in regard to any matter raised in the Loan
Documents.
SECTION 4.10. Solvency. On the Closing Date and after giving effect to
the transactions contemplated by the Loan Documents occurring on the Closing
Date, the Borrower and each Consolidated Subsidiary of the Borrower is and will
be Solvent.
<PAGE>
SECTION 4.11. Use of Proceeds: Margin Regulations. All proceeds of the
Loans will be used by the Borrower or any Consolidated Subsidiary of the
Borrower only in accordance with the provisions hereof. No part of the proceeds
of any Loan will be used by the Borrower or any Consolidated Subsidiary of the
Borrower to purchase or carry any Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock. Neither the making of
any Loan nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulations T, U or X of the Federal Reserve Board.
SECTION 4.12. Consents and Authorizations. Each of the Borrower and any
Consolidated Subsidiary of the Borrower has obtained all consents and
authorizations required pursuant to its Contractual Obligations with any other
Person, and has or shall have obtained all consents and authorizations of, and
effected all notices to and filings with, any Governmental Authority, as may be
necessary to allow it to lawfully execute, deliver and perform its obligations
under the Loan Documents to which it is a party.
SECTION 4.13. Investment Company Act; Public Utility Holding Company
Act. Neither the Borrower nor any Consolidated Subsidiary of Borrower is (x) an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended, (y) a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (z)
subject to any other federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
SECTION 4.14. Representations and Warranties in Loan Documents. All
representations and warranties made by the Borrower as to itself and its
Consolidated Subsidiaries in the Loan Documents are true and correct in all
material respects.
SECTION 4.15. Patents, Trademarks, etc. The Borrower and each
Consolidated Subsidiary of the Borrower owns, is licensed or otherwise has the
lawful right to use, or has all permits and other governmental approvals,
patents, trademarks, trade names, copyrights, technology, know-how and processes
used in or necessary for the conduct of each such Person's business as currently
conducted, the absence of which would have a Material Adverse Effect upon such
Person. The use of such permits and other governmental approvals, patents,
trademarks, trade names, copyrights, technology, know-how and processes by each
such Person does not infringe on the rights of any Person, subject to such
claims and infringements as do not, in the aggregate, give rise to any liability
on the part of any such Person which would have a Material Adverse Effect on any
such Person.
<PAGE>
SECTION 4.16. No Default. No Possible Default or Event of Default
exists under or with respect to any Loan Document. Neither the Borrower nor any
Consolidated Subsidiary of the Borrower is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any Contractual Obligation applicable to it, and no condition
exists which, with the giving of notice or the lapse of time or both, would
constitute a default under such Contractual Obligation in each case, except
where the consequences, direct or indirect, of such default or defaults, if any,
will not have a Material Adverse Effect on the Borrower or any Consolidated
Subsidiary of the Borrower.
SECTION 4.17. Licenses, etc. The Borrower and each Consolidated
Subsidiary of the Borrower has obtained and holds in full force and effect, all
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other consents and approvals which
are necessary for the operation of its businesses as presently conducted, the
absence of which is likely (to the extent that the Borrower or any Consolidated
Subsidiary of the Borrower can now reasonably foresee) to have a Material
Adverse Effect.
SECTION 4.18. Compliance With Law. The Borrower and each Consolidated
Subsidiary of the Borrower is in compliance with all Requirements of Law
(including the Securities Act and the Securities Exchange Act, and the
applicable rules and regulations thereunder, state securities law and "Blue Sky"
laws) applicable to it and its respective businesses, in each case, where the
failure to so comply will have a Material Adverse Effect.
SECTION 4.19. No Burdensome Restrictions. Neither the Borrower nor any
Consolidated Subsidiary of the Borrower is a party to any agreement or
instrument or subject to any other obligation or any charter or corporate or
partnership restriction, as the case may be, which, individually or in the
aggregate, is likely (to the extent that the Borrower or any Consolidated
Subsidiary of the Borrower can now reasonably foresee) to have a Material
Adverse Effect.
SECTION 4.20. Brokers' Fees. Neither the Borrower nor any Consolidated
Subsidiary of the Borrower has dealt with any broker or finder with respect to
the transactions contemplated by the Loan Documents (except with respect to the
acquisition or disposition of Real Property Assets) or otherwise in connection
with this Agreement, and the Borrower has not done any acts, had any
negotiations or conversation, or made any agreements or promises which will in
any way create or give rise to any obligation or liability for the payment by
the Borrower of any brokerage fee, charge, commission or other compensation to
any party with respect to the transactions contemplated by the Loan Documents
(except with respect to the acquisition or disposition of Real Property Assets),
other than the fees payable hereunder; provided, however, that Borrower has
dealt with Milton Ciplet as a broker.
SECTION 4.21. Labor Matters. Except as set forth on Schedule 4.21
attached hereto and made a part hereof, there are no collective bargaining
agreements or Multiemployer Plans covering the employees of the Borrower or any
Consolidated Subsidiary of the Borrower, and neither the Borrower nor any
Consolidated Subsidiary of the Borrower has suffered any strikes, walkouts, work
stoppages or other material labor difficulty within the last five (5) years.
<PAGE>
SECTION 4.22. Organizational Documents. The documents delivered
pursuant to Section 3.1 constitute, as of the Closing Date, all of the
organizational documents (together with all amendments and modifications
thereof) of the Borrower. The Borrower represents that it has delivered to the
Administrative Agent true, correct and complete copies of each of such
documents.
SECTION 4.23. Principal Offices. The principal office, chief executive
office and principal place of business of the Borrower is 44 South Bayles
Avenue, Port Washington, NY 11050.
SECTION 4.24. Borrower's Name. Borrower and/or its Consolidated
Subsidiaries have been required to make slight variations to their names as
registered in certain jurisdictions. Schedule 4.24, attached hereto and made a
part hereof, lists the name(s) under which Borrower and/or its Consolidated
Subsidiaries do business and are licensed to do business and the jurisdiction to
which each name and license applies.
SECTION 4.25. Ownership of Real Property Assets. The Borrower and each
Consolidated Subsidiary of the Borrower has good and merchantable title to its
Real Property Assets, each such Real Property Asset is free and clear of all
Liens, except Permitted Liens or any other Liens that are permitted under any
Mortgage with respect to a Mortgaged Property subject thereto and such assets
otherwise continues to meet the definition of Real Property Asset hereunder.
SECTION 4.26. Security Interests and Liens. The Mortgages create, as
security for the Obligations, valid and enforceable security interests in and
Liens on all of the Collateral in favor of the Administrative Agent as agent for
the ratable benefit of the Banks, and subject to no other Liens (except
Permitted Liens and any other Liens as may be permitted under any Mortgage with
respect to the Mortgaged Property subject thereto), except as enforceability may
be limited by applicable insolvency, bankruptcy or other laws affecting
creditors' rights generally, or general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law. Such security
interests in and Liens on the Collateral shall be superior to and prior to the
rights of all third parties in the Collateral (except Permitted Liens and any
other Liens as may be permitted under any Mortgage with respect to the Mortgaged
Property subject thereto), and, other than in connection with any future change
in the name of the Borrower or any Consolidated Subsidiary of the Borrower or
the location of the chief executive office of the Borrower or any Consolidated
Subsidiary of the Borrower, no further recordings or filings are or will be
required in connection with the creation, perfection or enforcement of such
security interests and Liens, other than the filing of continuation statements
in accordance with applicable law.
SECTION 4.27. Structural Defects and Violation of Law. Except as set
forth in any structural and engineering report delivered to and accepted by the
Administrative Agent with respect to the Mortgaged Properties (as supplemented
or amended, the "Engineering Report"), there are no material structural defects
with respect to any of the improvements, none of the improvements is in material
violation of any Requirements of Law, and the Borrower's or any Consolidated
Subsidiary's anticipated use of the improvements will comply in all material
respects with applicable zoning ordinances, regulations, and restrictive
covenants affecting the applicable Mortgaged Property.
<PAGE>
SECTION 4.28. Ownership of Other Persons. The Borrower does not own or
have any direct interest in any other Person, other than as set forth on
Schedule 4.28 attached hereto and made a part hereof.
SECTION 4.29. Ownership. Schedule 4.29 sets forth the direct and
indirect ownership interests in the Borrower, indicating the actual names of
such owners, the actual ownership interests of each such owner in the Borrower
and the percentage ownership interests of each such owner in the Borrower in the
aggregate.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
AS TO THE REIT
In order to induce the Administrative Agent and each of the other Banks
which may become a party to this Agreement to make the Loans, the Borrower and
the REIT make the following representations and warranties regarding the REIT as
of the date hereof. Such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the other Loan
Documents and the making of the Loans.
SECTION 5.1. Organization and Power. The REIT and each Consolidated
Subsidiary of the REIT (a) is a corporation, limited partnership or a limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation, (b) is duly qualified to do
business as a foreign corporation, limited partnership or a limited liability
company and in good standing under the laws of each jurisdiction in which it
owns or leases other real property or in which the nature of its business
requires it to be so qualified, except for such other jurisdictions where
failure to so qualify and be in good standing would not have a Material Adverse
Effect on the REIT or any Consolidated Subsidiary of the REIT and (c) has all
requisite corporate, partnership or limited liability company power and
authority to own and operate its property and assets and to conduct its business
as presently conducted and as proposed to be conducted in connection with and
following the consummation of the Loans contemplated by the Loan Documents.
<PAGE>
SECTION 5.2. Power and Authority. The REIT and each Consolidated
Subsidiary of the REIT has the requisite corporate, partnership or limited
liability company power and authority to execute, deliver and perform each of
the Loan Documents to which it is or will be a party. The execution, delivery
and performance thereof, and the consummation of the transactions contemplated
thereby, have been duly approved by the partners or board of directors of the
REIT and its Consolidated Subsidiaries, as the case may be, and no other
proceedings or authorizations on the part of the REIT, its Consolidated
Subsidiaries or their respective corporate board of directors or partners, as
the case may be, are necessary to consummate such transactions. Each of the Loan
Documents to which the REIT or any Consolidated Subsidiary of the REIT is a
party has been duly executed and delivered by the REIT or such Consolidated
Subsidiary of the REIT, as applicable, and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other laws affecting creditors' rights generally.
SECTION 5.3. No Violation. The execution, delivery and performance by
the REIT and each Consolidated Subsidiary of the REIT of the Loan Documents to
which it is or will be a party, and each of the transactions contemplated
thereby, do not and will not (a) conflict with or violate the articles of
incorporation or by-laws, limited partnership agreement, certificate of limited
partnership, operating agreement or other organizational documents, as the case
may be, or (b) conflict with, result in a breach of or constitute (with or
without notice or lapse of time or both) a default under any Requirement of Law,
Contractual Obligation or Court Order of or binding upon the REIT or such
Consolidated Subsidiary, or (c) require termination of any Contractual
Obligation or (d) result in or require the creation or imposition of any Lien
whatsoever upon any of the properties or assets of the REIT or such Consolidated
Subsidiary (other than Liens in favor of the Administrative Agent on behalf of
the Banks arising pursuant to the Loan Documents or the Security Documents or
Permitted Liens).
SECTION 5.4. Financial Information. (a) The unaudited consolidated
balance sheet of the REIT as of December 31, 1999, when delivered to the
Administrative Agent shall fairly present, in conformity with GAAP, the
consolidated financial position of the REIT as of such date and its consolidated
results of operations for such fiscal year.
(b) Since December 31, 1999, (i) there has been no Material Adverse
Effect upon the business, financial position or results of operations of the
REIT and (ii) except as previously disclosed to the Administrative Agent, the
REIT has not incurred any material Debt.
SECTION 5.5. Litigation. (a) There is no action, suit, proceeding,
governmental investigation or arbitration, at law or in equity, or before or by
any Governmental Authority, pending or, to the best of the REIT's knowledge,
threatened against the REIT or any Consolidated Subsidiary of the REIT, which if
adversely determined would (i) result in a Material Adverse Effect on the REIT,
or any Consolidated Subsidiary of the REIT, (ii) materially and adversely affect
the ability of any party to any of the Loan Documents to perform its obligations
thereunder or (iii) materially and adversely affect the ability of the REIT to
perform its obligations contemplated in the Loan Documents.
(b) Neither the REIT nor any Consolidated Subsidiary of the REIT is (i)
in violation of any applicable law, which violation has a Material Adverse
Effect on the REIT or any Consolidated Subsidiary of the REIT or (ii) subject to
or in default with respect to any Court Order which has a Material Adverse
Effect on the REIT or any Consolidated Subsidiary of the REIT. There are no
material Proceedings pending or, to the best of the REIT's knowledge, threatened
against the REIT or any Consolidated Subsidiary of the REIT, which, if adversely
decided, would have a Material Adverse Effect on the REIT or any Consolidated
Subsidiary of the REIT.
<PAGE>
(c) There are no final nonappealable judgments or decrees in an
aggregate amount of Five Hundred Thousand Dollars ($500,000) or more entered by
a court or courts of competent jurisdiction against the REIT or any Consolidated
Subsidiary of the REIT (other than any judgment as to which, and only to the
extent, a reputable insurance company has acknowledged coverage of such claim in
writing).
SECTION 5.6. Compliance with ERISA. (a) Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
(b) Except for each "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) that is maintained, or contributed to, by one or more
members of the ERISA Group, no member of the ERISA Group is a "party in
interest" (as such term is defined in Section 3(14) of ERISA or a "disqualified
person" (as such term is defined in Section 4975(e)(2) of the Code) with respect
to any funded employee benefit plan and none of the assets of any such plans
have been invested in a manner that would cause the transactions contemplated by
the Loan Documents to constitute a nonexempt prohibited transaction (as such
term is defined in Section 4975 of the Code or Section 406 of ERISA).
(c) Neither the REIT nor any ERISA Affiliate thereof has in the past
five (5) years maintained or contributed to or currently maintains or
contributes to any Benefit Plan other than the Benefit Plans identified on
Schedule 5.6(c). Neither the REIT nor any ERISA Affiliate thereof has during the
past five (5) years maintained or contributed to or currently maintains or
contributes to any employee welfare benefit plan within the meaning of Section
3(l) of ERISA which provides benefits to retirees other than benefits required
to be provided under Section 4980B of the Internal Revenue Code and Sections 601
through 608 of ERISA (or any successor provisions thereto). Neither the REIT nor
any ERISA Affiliate thereof is now contributing nor has it ever contributed to
or been obligated to contribute to any Multiemployer Plan, no employees or
former employees of the REIT, or such ERISA Affiliate have been covered by any
Multiemployer Plan in respect of their employment by the REIT, and no ERISA
Affiliate of the REIT has or is likely to incur any withdrawal liability with
respect to any Multiemployer Plan which would have a Material Adverse Effect on
the REIT.
<PAGE>
SECTION 5.7. Taxes. All tax returns and reports to be filed by the REIT
or any Consolidated Subsidiary of the REIT have been timely filed, except as
disclosed on Schedule 5.7 attached hereto and made a part hereof, and all Taxes,
assessments, fees and other governmental charges shown on such returns or
otherwise payable by the REIT or any Consolidated Subsidiary of the REIT have
been paid when due and payable (other than real property taxes, which may be
paid prior to delinquency so long as no penalty or interest shall attach
thereto), except such taxes, if any, as are reserved against in accordance with
GAAP and are being contested in good faith by appropriate proceedings or such
taxes, the failure to make payment of which when due and payable will not have,
in the aggregate, a Material Adverse Effect on the REIT or any Consolidated
Subsidiary of the REIT. Neither the REIT nor any Consolidated Subsidiary of the
REIT has any knowledge of any proposed tax assessment against it that will have
a Material Adverse Effect on the REIT or any Consolidated Subsidiary of the
REIT, which is not being actively contested in good faith by the REIT or any
Consolidated Subsidiary of the REIT. In each case disclosed on Schedule 5.7, the
filing, if made, would have shown no Taxes owed. Any failure to make filings as
to Taxes disclosed on Schedule 5.7 will not have, in the aggregate, a Material
Adverse Effect on the REIT or any consolidated subsidiary of the REIT.
SECTION 5.8. Full Disclosure. The representations and warranties of the
REIT contained in the Loan Documents and all certificates, financial statements
and other documents delivered to the Administrative Agent or the Banks in
connection therewith, do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading. Neither the REIT nor any Consolidated Subsidiary of the
REIT has intentionally withheld any material fact from the Administrative Agent
or the Banks in regard to any matter raised in the Loan Documents.
SECTION 5.9. Solvency. On the Closing Date and after giving effect to
the transactions contemplated by the Loan Documents occurring on the Closing
Date, the REIT or any Consolidated Subsidiary of the REIT is and will be
Solvent.
SECTION 5.10. Consents and Authorizations. Each of the REIT and any
Consolidated Subsidiary of the REIT has obtained all consents and authorizations
required pursuant to its Contractual Obligations with any other Person, and has
or shall have obtained all consents and authorizations of, and effected all
notices to and filings with, any Governmental Authority, as may be necessary to
allow it to lawfully execute, deliver and perform its obligations under the Loan
Documents to which it is a party.
SECTION 5.11. Investment Company Act; Public Utility Holding Company
Act. Neither the REIT nor any Consolidated Subsidiary of the REIT is (x) an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended, (y) a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (z)
subject to any other federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
<PAGE>
SECTION 5.12. Representations and Warranties in Loan Documents. All
representations and warranties made by the REIT as to itself and its
Consolidated Subsidiaries in the Loan Documents are true and correct in all
material respects.
SECTION 5.13. Patents, Trademarks, etc. The REIT and each Consolidated
Subsidiary of the REIT owns, is licensed or otherwise has the lawful right to
use, or has all permits and other governmental approvals, patents, trademarks,
trade names, copyrights, technology, know-how and processes used in or necessary
for the conduct of each such Person's business as currently conducted, the
absence of which would have a Material Adverse Effect upon such Person. The use
of such permits and other governmental approvals, patents, trademarks, trade
names, copyrights, technology, know-how and processes by each such Person does
not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liability on the
part of any such Person which would have a Material Adverse Effect on any such
Person.
SECTION 5.14. No Default. No Possible Default or Event of Default
exists under or with respect to any Loan Document. Neither the REIT nor any
Consolidated Subsidiary of the REIT is in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions contained in
any Contractual Obligation applicable to it, and no condition exists which, with
the giving of notice or the lapse of time or both, would constitute a default
under such Contractual Obligation in each case, except where the consequences,
direct or indirect, of such default or defaults, if any, will not have a
Material Adverse Effect on the REIT or any Consolidated Subsidiary of the REIT.
SECTION 5.15. Licenses, etc. The REIT and each Consolidated Subsidiary
of the REIT has obtained and holds in full force and effect, all franchises,
licenses, permits, certificates, authorizations, qualifications, accreditations,
easements, rights of way and other consents and approvals which are necessary
for the operation of its businesses as presently conducted, the absence of which
is likely (to the extent that the REIT or any Consolidated Subsidiary of the
REIT can now reasonably foresee) to have a Material Adverse Effect.
SECTION 5.16. Compliance With Law. The REIT and each Consolidated
Subsidiary of the REIT is in compliance with all Requirements of Law (including
the Securities Act and the Securities Exchange Act, and the applicable rules and
regulations thereunder, state securities law and "Blue Sky" laws) applicable to
it and its respective businesses, in each case, where the failure to so comply
will have a Material Adverse Effect on the REIT or any Consolidated Subsidiary
of the REIT.
SECTION 5.17. No Burdensome Restrictions. Neither the REIT nor any
Consolidated Subsidiary of the REIT is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate or partnership
restriction, as the case may be, which, individually or in the aggregate, is
likely (to the extent that the REIT or any Consolidated Subsidiary of the REIT
can now reasonably foresee) to have a Material Adverse Effect on the REIT.
<PAGE>
SECTION 5.18. Brokers' Fees. Neither the REIT or any Consolidated
Subsidiary of the REIT has dealt with any broker or finder with respect to the
transactions contemplated by the Loan Documents or otherwise in connection with
this Agreement, and the REIT has not done any acts, had any negotiations or
conversation, or made any agreements or promises which will in any way create or
give rise to any obligation or liability for the payment by the REIT of any
brokerage fee, charge, commission or other compensation to any party with
respect to the transactions contemplated by the Loan Documents (except with
respect to the acquisition or disposition of Real Property Assets), other than
the fees payable hereunder; provided, however, that REIT has dealt with Milton
Ciplet as a broker.
SECTION 5.19. Labor Matters. Except as set forth on Schedule 5.19
attached hereto and made a part hereof, there are no collective bargaining
agreements or Multiemployer Plans covering the employees of the REIT and the
REIT has not suffered any strikes, walkouts, work stoppages or other material
labor difficulty within the last five (5) years.
SECTION 5.20. Organizational Documents. The documents delivered
pursuant to Section 3.1 constitute, as of the Closing Date, all of the
organizational documents (together with all amendments and modifications
thereof) of the REIT.
SECTION 5.21. Principal Offices. The principal office, chief executive
office and principal place of business of the REIT is 44 South Bayles Avenue,
Port Washington, NY 11050.
SECTION 5.22. REIT's Name. The REIT and/or its Consolidated
Subsidiaries have been requested to make slight variations in their names as
registered in certain jurisdictions. Schedule 5.22, attached hereto and made a
part hereof, lists the name(s) under which the REIT and its Consolidated
Subsidiaries do business and are licensed and the jurisdiction to which each
name and license applies.
SECTION 5.23. REIT Status. For the fiscal year ended December 31, 1999,
the REIT qualified, and thereafter, the REIT intends to continue to qualify, as
a real estate investment trust under the Internal Revenue Code.
SECTION 5.24. Ownership of Other Persons. The REIT does not own or have
any direct interest in any other Person, other than as set forth on Schedule
5.24 attached hereto and made a part hereof.
SECTION 5.25. Ownership. Schedule 5.25 sets forth the direct and
indirect ownership interests in the REIT, indicating the actual names of such
owners, the actual ownership interests of each such owner in the REIT and the
percentage ownership interests of each such owner in the REIT in the aggregate,
as most recently published by the REIT.
<PAGE>
ARTICLE VI
REPORTING COVENANTS
SECTION 6.1. Financial Statements and Other Financial and Operating
Information. The Borrower and the REIT shall maintain or cause to be maintained
a system of accounting established and administered in accordance with sound
business practices and consistent with past practice to permit preparation of
quarterly and annual financial statements in conformity with GAAP, and each of
the financial statements described below shall be prepared on a consolidated
basis for the Borrower from such system and records. The Borrower shall deliver
or cause to be delivered to the Administrative Agent and each Bank:
(a) Quarterly Financial Statements of Borrower Certified by CFO. As
soon as practicable, and in any event within forty-five (45) days after the end
of each Fiscal Quarter, consolidated and consolidating balance sheets as at the
end of such Fiscal Quarter and the related statements of operations and
statements of cash flow for the Borrower (collectively, the "Borrower Financial
Statements") for such Fiscal Quarter and for the year to the end of that
quarterly period, prepared on an unaudited comparative basis with the comparable
period during the prior year and in accordance with GAAP, all in reasonable
detail and unaudited but certified by the Borrower's chief financial officer or
chief accounting officer.
(b) Quarterly Financial Statements of REIT Certified by CFO. As soon as
practicable, and in any event within forty-five (45) days after the end of each
Fiscal Quarter, consolidated and consolidating balance sheets as at the end of
such Fiscal Quarter and the related statements of operations and statements of
cash flow for the REIT (collectively, the "REIT Financial Statements") for such
Fiscal Quarter and for the year to the end of that quarterly period, prepared on
an unaudited comparative basis with the comparable period during the prior year
and in accordance with GAAP, all in reasonable detail and unaudited but
certified by the REIT's chief financial officer or chief accounting officer.
<PAGE>
(c) Annual Financial Statements of Borrower. Within ninety (90) days
after the close of each Fiscal Year, annual Borrower Financial Statements, on a
consolidated and consolidating basis, audited and certified without
qualification by the Accountants and accompanied by a statement that, in the
course of their audit (conducted in accordance with generally accepted auditing
standards), the Accountants obtained no knowledge that an Event of Default or
Possible Default occurred during the period covered thereby. Without limiting
the foregoing, to the extent the Administrative Agent or any Bank desires
additional details or supporting information with respect to individual Real
Property Assets, the Borrower shall provide the Administrative Agent and each
Bank with such details or supporting information as the Administrative Agent or
any Bank requests which is reasonably available to the Borrower. Without
limiting the foregoing, at the Administrative Agent's request, within ninety
(90) days after the end of each Fiscal Year, the Borrower shall provide to the
Administrative Agent operating statements and a Lease Status Schedule, with
footnotes indicating which leases are in default in rent payments by more than
sixty (60) days (other than technical, nonmaterial disputes concerning
percentage rentals and reimbursable expenses due) or under any other material
provisions in respect to which the landlord has issued a notice of default.
(d) Annual Financial Statements of REIT. Within ninety (90) days after
the close of each Fiscal Year, annual REIT Financial Statements, on a
consolidated and consolidating basis (in the form provided to the Commission on
the REIT's Form 10K, if such form is required to be filed), audited and
certified without qualification by the Accountants and accompanied by a
statement that, in the course of their audit (conducted in accordance with
generally accepted auditing standards), the Accountants obtained no knowledge
that an Event of Default or Possible Default occurred during the period covered
thereby.
(e) Officer's Certificate. (i) Together with each delivery of any
Financial Statement pursuant to any of subsections (a), (b), (c) and (d) above,
an Officer's Certificate stating that the executive officer who is the signatory
thereto (which officer shall be the chief executive officer, the chief operating
officer, the chief financial officer or the chief accounting officer), or such
other officer as shall be acceptable to the Administrative Agent in its sole
discretion has reviewed, or caused under his supervision to be reviewed, the
terms of this Agreement and the other principal Loan Documents, and has made, or
caused to be made under his supervision, a review in reasonable detail of the
transactions and condition of the Borrower or the REIT, as the case may be,
during the accounting period covered by such Financial Statements, and that such
review has not disclosed the existence during or at the end of such accounting
period, and that the signers do not have knowledge of the existence as of the
date of the Officer's Certificate, of any condition or event which constitutes
an Event of Default or Possible Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence thereof and
what action has been taken, is being taken and is proposed to be taken with
respect thereto; (ii) together with each delivery in subsections (a), (b), (c)
and (d) above, a Compliance Certificate demonstrating in reasonable detail
(which detail shall include actual calculation and supporting information
satisfactory to the Administrative Agent) compliance during and at the end of
such accounting periods with the covenants contained in Sections 9.1 through
9.7; (iii) together with each delivery in subsections (a), (b), (c) and (d)
above, an Availability Certificate demonstrating Availability; (iv) together
with each delivery in subsections (b) and (d) above, a letter from the
Accountants certifying that they have reviewed all Compliance Certificates
delivered to the Administrative Agent in connection therewith, and that the
computations set forth in such Compliance Certificates were accurate and
demonstrated compliance with all such financial covenants covered thereby; (v)
together with each delivery in subsections (a) and (c) above, a Lease Status
Schedule, and (vi) if requested by the Administrative Agent, together with each
delivery in subsection (a) above, a schedule of all Debt of the Borrower, the
REIT and their respective Consolidated Subsidiaries, including the amount of
such Debt owing to each lender, the identity of the lender, the maturity of such
Debt, the interest rate applicable to such Debt and whether or not such Debt is
secured.
<PAGE>
(f) Annual Budget. Not later than fifteen (15) days after the beginning
of each Fiscal Year, the annual budget of the Borrower, on a consolidated basis,
detailing expected sources and uses of cash for the next Fiscal Year. The
Borrower shall also provide such additional supporting detail as the
Administrative Agent may reasonably request.
(g) Mortgaged Property Statements. As soon as practicable, and in any
event within forty-five (45) days after the end of each Fiscal Quarter,
quarterly operating statements, in a form approved by the Administrative Agent,
which operating statements shall include actual quarterly and year-to-date net
operating income and net cash flow results, rent rolls in the form customarily
generated by the Borrower or a Consolidated Subsidiary of the Borrower, as
applicable, for each Mortgaged Property dated as of the last day of such Fiscal
Quarter (the "Quarterly Operating Reports"), in form and substance satisfactory
to the Administrative Agent, certified by the Borrower's chief financial officer
or chief accounting officer. In addition, as soon as practicable, and in any
event within forty-five (45) days after the end of the fourth Fiscal Quarter of
each Fiscal Year, a year-end operating statement, in a form approved by the
Administrative Agent, which operating statement shall include net operating
income and net cash flow results for each Mortgaged Property for such year end
dated as of the last day of such Fiscal Quarter (collectively, with the
Quarterly Operating Reports, the "Mortgaged Property Statements").
(h) Budgets For Mortgaged Property. Not later than fifteen (15) days
after the beginning of each Fiscal Year, annual operating budgets for each
Mortgaged Property for the immediately following Fiscal Year, prepared on an
annual basis, in a form approved by the Administrative Agent, together with all
supporting details reasonably requested by the Administrative Agent, and
certified by the chief executive officer, chief operating officer, chief
financial officer or chief accounting officer of the Borrower as being based
upon the Borrower's reasonable good faith estimates, upon information and
assumptions at the time. Neither such annual operating budgets, nor the annual
budget required by Section 6.1(d), nor any other information furnished pursuant
to Section 6.1(r), shall constitute a representation or warranty of future
results or performance.
(i) Knowledge of Event of Default. Promptly upon the Borrower or the
REIT or any of their respective Consolidated Subsidiaries obtaining knowledge
(i) of any condition or event which constitutes an Event of Default or Possible
Default, or becoming aware that the Administrative Agent or any Bank has given
notice or taken any other action with respect to a claimed Event of Default or
Possible Default or (ii) of any condition or event which has a Material Adverse
Effect, an Officer's Certificate specifying the nature and period of existence
of any such condition or event, or specifying the notice given or action taken
by the Administrative Agent or such Bank and the nature of such claimed Event of
Default, Possible Default, event or condition, and what action the Borrower has
taken, is taking and proposes to take with respect thereto.
<PAGE>
(j) Litigation, Arbitration or Government Investigation. Promptly upon
the Borrower or the REIT or any of their respective Consolidated Subsidiaries
obtaining knowledge of (i) the institution of, or threat of, any material
action, suit, proceeding, governmental investigation or arbitration against or
affecting the Borrower, the REIT, any of their respective Consolidated
Subsidiaries or any of the Real Property Assets not previously disclosed in
writing by the Borrower to the Administrative Agent pursuant to this Section
6.1(h), including any eminent domain or other condemnation proceedings affecting
the Borrower's or any of Borrower's Consolidated Subsidiary's Real Property
Assets or (ii) any material development in any action, suit, proceeding,
governmental investigation or arbitration already disclosed, which, in either
case, has a Material Adverse Effect, a notice thereof to the Administrative
Agent and such other information as may be reasonably available to it to enable
the Administrative Agent, the Banks and their counsel to evaluate such matters.
(k) ERISA Termination Event. As soon as possible, and in any event
within thirty (30) days after the Borrower or any ERISA Affiliate knows that a
Termination Event has occurred, a written statement of the chief financial
officer of the Borrower describing such Termination Event and the action, if
any, which the Borrower or any ERISA Affiliate has taken, is taking or proposes
to take, with respect thereto, and, when known, any action taken or threatened
by the IRS, the DOL or the PBGC with respect thereto.
(l) Prohibited ERISA Transaction. As soon as possible, and in any event
within thirty (30) days, after the Borrower or any ERISA Affiliate knows that a
prohibited transaction (defined in Section 406 of ERISA and Section 4975 of the
Internal Revenue Code) has occurred, a statement of the chief financial officer
of the Borrower describing such transaction.
(m) Benefit Plan Annual Report. Within thirty (30) days after the
filing thereof with the DOL, the IRS or the PBGC, copies of each annual report,
including Schedule B thereto, filed with respect to each Benefit Plan of the
Borrower or any ERISA Affiliate.
(n) Benefit Plan Funding Waiver Request. Within thirty (30) days after
the filing thereof with the IRS, a copy of each funding waiver request filed
with respect to any Benefit Plan of the Borrower or any ERISA Affiliate and all
communications received by the Borrower or any ERISA Affiliate with respect to
such request.
(o) Establishment of Benefit Plan and Increase in Contributions to the
Benefit Plan. Not less than ten (10) days prior to the effective date thereof, a
notice to the Administrative Agent of the establishment of a Benefit Plan (or
the incurrence of any obligation to contribute to a Multiemployer Plan) by the
Borrower or any ERISA Affiliate. Within thirty (30) days after the first to
occur of an amendment of any then existing Benefit Plan of the Borrower or any
ERISA Affiliate which will result in an increase in the benefits under such
Benefit Plan or a notification of any such increase, or the establishment of any
new Benefit Plan by the Borrower or any ERISA Affiliate or the commencement of
contributions to any Benefit Plan to which the Borrower or any ERISA Affiliate
was not previously contributing, a copy of said amendment, notification or
Benefit Plan.
<PAGE>
(p) Qualification of ERISA Plan. Promptly upon, and in any event within
thirty (30) days after, receipt by the Borrower or any ERISA Affiliate of an
unfavorable determination letter from the IRS regarding the qualification of a
Plan under Section 401(a) of the Internal Revenue Code, a copy of said
determination letter, if such disqualification would have a Material Adverse
Effect on the Borrower.
(q) Multiemployer Plan Withdrawal Liability. Promptly upon, and in any
event within thirty (30) days after receipt by the Borrower or any ERISA
Affiliate of a notice from a Multiemployer Plan regarding the imposition of
withdrawal liability, a copy of said notice.
(r) Failure to Make Section 412 Payment. Promptly upon, and in any
event within thirty (30) days after the Borrower or any ERISA Affiliate fails to
make a required installment under subsection (m) of Section 412 of the Internal
Revenue Code or any other payment required under Section 412 of the Internal
Revenue Code on or before the due date for such installment or payment, a
notification of such failure, if such failure could result in either the
imposition of a Lien under said Section 412 or otherwise have or could
reasonably be anticipated to have a Material Adverse Effect on the Borrower.
(s) Failure of REIT to Qualify as Real Estate Investment Trust.
Promptly upon, and in any event within forty-eight (48) hours after the Borrower
or the REIT first has actual knowledge of (i) the REIT failing to continue to
qualify as a real estate investment trust as defined in Section 856 of the
Internal Revenue Code (or any successor provision thereof), (ii) any act by the
REIT causing its election to be taxed as a real estate investment trust to be
terminated, (iii) any act causing the REIT to be subject to the taxes imposed by
Section 857(b)(6) of the Internal Revenue Code (or any successor provision
thereto), or (iv) the REIT failing to be entitled to a dividends paid deduction
which meets the requirements of Section 857 of the Internal Revenue Code, a
notice of any such occurrence or circumstance.
(t) Other Information. Such other information, reports, contracts,
schedules, lists, documents, agreements and instruments in the possession of the
Borrower or the REIT with respect to (i) any material change in the Borrower's
or the REIT's investment, finance or operating policies, or (ii) the Borrower's
or the REIT's business, condition (financial or otherwise), operations,
performance, properties or prospects as the Administrative Agent or any Bank may
from time to time reasonably request, including annual information with respect
to cash flow projections, budgets, operating statements (current year and
immediately preceding year), rent rolls, lease expiration reports, Lease Status
Schedules, note payable summaries, bullet note summaries, equity funding
requirements, contingent liability summaries, line of credit summaries, line of
credit collateral summaries, wrap note or note receivable summaries, schedules
of outstanding letters of credit, summaries of cash and Cash Equivalents,
projections of leasing fees and overhead budgets.
<PAGE>
(u) Press Releases; SEC Filings and Financial Statements. Telephonic or
telecopy notice to the Administrative Agent concurrent with or prior to issuance
of any material press release concerning the Borrower or the REIT and, as soon
as practicable after filing with the Commission, all reports and notices, proxy
statements, registration statements and prospectuses of the Borrower or the
REIT. All materials sent or made available generally by the Borrower or the REIT
to the holders of its publicly-held securities or to a trustee under any
indenture or filed with the Commission, including all periodic reports required
to be filed with the Commission, will be delivered to the Administrative Agent
as soon as available.
(v) Accountant Reports. Copies of all material reports prepared by the
Accountants and submitted to the Borrower or the REIT in connection with each
annual, interim or special audit or review of the financial statements or
practices of the Borrower or the REIT, including the comment letter submitted by
the Accountants in connection with their annual audit.
(w) Insurance Losses. Promptly and in any event within seven (7) days
after receipt of any material notices or correspondence from any company or
agent for any company providing insurance coverage to the Borrower relating to
any material loss of the Borrower with respect to any of the Mortgaged
Properties, copies of such notices and correspondence.
SECTION 6.2. Environmental Notices. The Borrower shall notify the
Administrative Agent, in writing, as soon as practicable, and in any event
within ten (10) days after the Borrower's learning thereof, of any: (a) written
notice or claim to the effect that the Borrower or any Consolidated Subsidiary
is or may be liable to any Person as a result of any material Release or
threatened Release of any Contaminant into the environment; (b) written notice
that the Borrower or any Consolidated Subsidiary is subject to investigation by
any Governmental Authority evaluating whether any Remedial Action is needed to
respond to the Release or threatened Release of any Contaminant into the
environment; (c) written notice that any Real Property Asset is subject to an
Environmental Lien; (d) written notice of violation to the Borrower or any
Consolidated Subsidiary or awareness of a condition which might reasonably
result in a notice of violation of any Environmental Laws by the Borrower or
such Consolidated Subsidiary; (e) commencement or written threat of any judicial
or administrative proceeding alleging a violation of any Environmental Laws by
the Borrower or any Consolidated Subsidiary; (f) written notice from a
Governmental Authority of any changes to any existing Environmental Laws that
will have a Material Adverse Effect on the operations of the Borrower or (g) any
proposed acquisition of stock, assets, real estate or leasing of property, or
any other action by the Borrower that, to the best of the Borrower's knowledge,
could subject the Borrower or any Consolidated Subsidiary to environmental,
health or safety Liabilities and Costs that will have a Material Adverse Effect
on the Borrower.
<PAGE>
SECTION 6.3. Confidentiality. Confidential information obtained by the
Administrative Agent or any Bank pursuant to this Agreement or in connection
with the Commitment shall not be disseminated by the Administrative Agent or
such Bank and shall not be disclosed to third parties except to regulators,
taxing authorities and other governmental agencies having jurisdiction over the
Administrative Agent or such Bank or otherwise in response to Requirements of
Law, to its auditors and legal counsel and in connection with regulatory,
administrative and judicial proceedings as necessary or relevant including
enforcement proceedings relating to the Loan Documents, and to any prospective
assignee of or participant in any Bank's interest under this Agreement or any
prospective purchaser of the assets or a controlling interest in any Bank,
provided that such prospective assignee, participant or purchaser first agrees
to be bound by the provisions of this Section 6.3. In connection with
disclosures of confidential information to any non-governmental third-party, the
Administrative Agent and each Bank shall, to the extent feasible and permitted,
give prior notice of such request to the Borrower; however, neither the
Administrative Agent nor any Bank shall incur any liability to the Borrower for
failure to do so. For purposes hereof, "confidential information" shall mean all
nonpublic information obtained by the Administrative Agent or the Banks, unless
and until such information becomes publicly known, other than as a result of
unauthorized disclosure by the Administrative Agent or any Bank of such
information.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Borrower and the REIT, as applicable, covenant and agree that, so
long as any Bank has any Commitment hereunder or any Obligations remain unpaid:
SECTION 7.1. With Respect to the Borrower:
(a) Existence. The Borrower shall and shall cause each of its
Consolidated Subsidiaries to maintain at all times its existence as a
corporation, general partnership, limited partnership, corporation, limited
liability company or other entity, as applicable, and preserve and keep in full
force and effect its rights and franchises unless the failure to maintain such
rights and franchises does not have a Material Adverse Effect on the Borrower or
such Consolidated Subsidiary, as applicable.
(b) Qualification, Name. The Borrower shall and shall cause each of its
Consolidated Subsidiaries to qualify and remain qualified to do business in each
jurisdiction in which the nature of its business requires it to be so qualified
except for those jurisdictions where failure to so qualify does not have a
Material Adverse Effect on the Borrower or such Consolidated Subsidiary, as
applicable. Schedule 4.24, attached hereto and made a part hereof, lists the
name(s) under which Borrower and/or its Consolidated Subsidiaries do business
and are licensed to do business and the jurisdiction to which each name and
license applies. The Borrower will and will cause each of its Consolidated
Subsidiaries to transact business solely in its own name, as licensed in the
applicable jurisdictions. Borrower shall notify the Administrative Agent not
less than thirty (30) days in advance of any change in the name of Borrower or
any Consolidated Subsidiary applicable in any jurisdiction.
(c) Compliance with Laws, Etc. The Borrower shall and shall cause each
of its Consolidated Subsidiaries to (i) comply with all Requirements of Law, and
all restrictive covenants affecting such Person or the properties, performance,
assets or operations of such Person, and (ii) obtain as needed all Permits
necessary for its operations and maintain such in good standing, except in each
of the foregoing cases where the failure to do so will not have a Material
Adverse Effect on such Person.
<PAGE>
(d) Payment of Taxes and Claims. The Borrower shall and shall cause
each of its Consolidated Subsidiaries to pay (i) all taxes, assessments and
other governmental charges imposed upon it or on any of its properties or assets
or in respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, the failure to make payment of which will
have a Material Adverse Effect on such Person, and (ii) all claims (including
claims for labor, services, materials and supplies) for sums, material in the
aggregate to such Person, which have become due and payable and which by law
have or may become a Lien other than a judgment lien upon any of such Person's
properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto. Notwithstanding the foregoing, the Borrower may
contest by appropriate legal proceedings conducted in good faith and with due
diligence, the amount, validity or application, in whole or in part, of any
taxes, assessments, other governmental charges or claims described above,
provided that the Borrower shall provide such security as may be required by the
Administrative Agent to insure ultimate payment of the same and to prevent any
sale or forfeiture of the Borrower's or any Consolidated Subsidiary's Real
Property Assets (or any portion thereof or interest therein); provided, that the
provisions of this Section 7.1(d) shall not be construed to permit the Borrower
to contest the payment of any Obligations or any other sums payable by the
Borrower to the Administrative Agent or the Banks hereunder or under any other
Loan Document. Notwithstanding any of the foregoing, the Borrower shall
indemnify, defend and save the Administrative Agent and the Banks harmless from
and against any liability, cost or expense of any kind that may be imposed on
the Administrative Agent or the Banks in connection with any such contest and
any loss resulting therefrom.
(e) Maintenance of Properties; Insurance. The Borrower shall and shall
cause each of its Consolidated Subsidiaries to maintain in good repair, working
order and condition, excepting ordinary wear and tear, all of its Real Property
Assets and will make or cause to be made all appropriate repairs, renewals and
replacements thereof. The Borrower shall and shall cause each of its
Consolidated Subsidiaries to maintain commercially reasonable and appropriate
amounts of fire and extended coverage and liability insurance.
(f) Inspection of Property; Books and Records; Discussions. The
Borrower shall permit, and shall cause each of its Consolidated Subsidiaries to
permit, any authorized representative(s) designated by the Administrative Agent
or any Bank to visit and inspect any of its properties, including, in the case
of the Borrower or any Consolidated Subsidiary of the Borrower, all Mortgaged
Properties, to inspect financial and accounting records and leases, and all
other books and records of the Borrower and each Consolidated Subsidiary, and to
make copies and take extracts therefrom, all at such times during normal
business hours and as often as the Administrative Agent or any Bank may
reasonably request, upon not less than two (2) business days' notice. In
connection therewith, the Borrower shall pay all expenses of the types described
in Section 13.3. The Borrower will and will cause each of its Consolidated
Subsidiaries to keep proper books of record and account in which entries, in
conformity with GAAP and as otherwise required by this Agreement and applicable
Requirements of Law, shall be made of all dealings and transactions in relation
to its businesses and activities.
<PAGE>
(g) Maintenance of Permits, Etc. The Borrower will and will cause each
of its Consolidated Subsidiaries to maintain in full force and effect all
Permits, franchises, patents, trademarks, trade names, copyrights,
authorizations or other rights necessary for the operation of its business,
except where the failure to obtain any of the foregoing would not have a
Material Adverse Effect on such Person; and notify the Administrative Agent in
writing, promptly after learning thereof, of the suspension, cancellation,
revocation or discontinuance of or of any pending or threatened action or
proceeding seeking to suspend, cancel, revoke or discontinue any material
Permit, patent, trademark, trade name, copyright, governmental approval,
franchise authorization or right.
(h) Conduct of Business. Without limiting the restrictions set forth in
Section 9.6, and except for investments in cash and Cash Equivalents, the
Borrower shall engage only in the business of acquiring, developing, owning and
operating retail, office and industrial properties within the continental United
States and any business activities and investments of the Borrower shall be
incidental thereto.
(i) Use of Proceeds. Subject to the provisions of Section 2.2, the
Borrower shall use the proceeds of the Loans for general corporate purposes,
including acquisition of real property assets that satisfy the requirements of
Sections 3.3(a)(i) through (iv), working capital and leasing costs for Mortgaged
Properties and otherwise legal and proper uses (and to the extent necessary,
duly authorized by Borrower's partners) and such uses shall be consistent with
all applicable Requirements of Law and this Agreement; provided, however, that
no Loan proceeds may be used for construction financing.
(j) Further Assurances. The Borrower shall, and shall cause its
Consolidated Subsidiaries to, execute and deliver within thirty (30) days after
request therefor by the Administrative Agent or the Banks, all further
instruments and documents and take all further action that the Administrative
Agent or Banks may reasonably request, in order (i) to correct any defect, error
or omission in this Agreement, the Notes and the other Loan Documents, (ii) to
carry out any syndication of the Loans hereunder, (iii) to perfect and maintain
the validity, effectiveness and priority of any security interests intended to
be created by the Loan Documents and (iv) to better assure, convey, grant,
assign, transfer, preserve, protect and confirm unto the Administrative Agent
and the Banks, the rights and remedies granted now or hereafter intended to be
granted to the Administrative Agent or the Banks under the Loan Documents or
under any other instrument or document executed in connection therewith.
(l) Payment of Obligations. The Borrower will pay and discharge, and
cause each of its Consolidated Subsidiaries to pay and discharge, at or before
maturity, all its material obligations and liabilities, including any obligation
pursuant to any agreement by which it or any of its Real Property Assets is
bound and any Tax liabilities, in any case, where failure to do so will likely
result in a Material Adverse Effect on the Borrower, except (i) such Taxes may
be contested in good faith by appropriate proceedings and so long as the
Borrower will maintain in accordance with GAAP, appropriate reserves for the
accrual of any of the same; or (ii) such obligation or liability as may be
contested in good faith by appropriate proceedings.
<PAGE>
(m) REIT's Continued Status as a Real Estate Investment Trust;
Prohibited Transactions. The Borrower shall use best efforts to insure that the
REIT (i) will not revoke its election to be a real estate investment trust, (ii)
will not engage in any "prohibited transactions" as defined in Section
856(b)(6)(iii) of the Internal Revenue Code (or any successor provision thereto)
and (iii) will continue to be entitled to a dividend paid deduction meeting the
requirements of Section 857 of the Internal Revenue Code.
(n) Year 2000 Compliance Efforts. The Borrower and each of its
Consolidated Subsidiaries has taken and will continue to take, all reasonable
actions to assure that its computer based systems are able to effectively
process data, including dates on and after January 1, 2000, and to avoid serious
disruption to its business or operations and the Borrower and each of its
Consolidated Subsidiaries will notify the Administrative Agent of any material
risk of its inability to so process data and avoid serious disruption which
could have a Material Adverse Effect.
SECTION 7.2. With Respect to the REIT:
(a) Existence. The REIT shall and shall cause each of its Consolidated
Subsidiaries to maintain at all times maintain its existence as a corporation,
general partnership, limited partnership, corporation, limited liability company
or other entity, as applicable, and preserve and keep in full force and effect
its rights and franchises unless the failure to maintain such rights and
franchises does not have a Material Adverse Effect on the REIT or such
Consolidated Subsidiary, as applicable.
(b) Qualification, Name. The REIT shall and shall cause each of its
Consolidated Subsidiaries to qualify and remain qualified to do business in each
jurisdiction in which the nature of its business requires it to be so qualified
except for those jurisdictions where failure to so qualify does not have a
Material Adverse Effect on the REIT or such Consolidated Subsidiary, as
applicable. The REIT will and will cause each of its Consolidated Subsidiaries
to transact business solely in its own name, as licensed in the applicable
jurisdiction. The REIT shall notify the Administrative Agent not less than
thirty (30) days in advance of any change in the name of the REIT or any of its
Consolidated Subsidiaries applicable in any jurisdiction.
(c) Compliance with Laws, Etc. The REIT shall and shall cause each of
its Consolidated Subsidiaries to (i) comply with all Requirements of Law, and
all restrictive covenants affecting such Person or the properties, performance,
assets or operations of such Person, and (ii) obtain as needed all Permits
necessary for its operations and maintain such in good standing, except in each
of the foregoing cases where the failure to do so will not have a Material
Adverse Effect on such Person.
<PAGE>
(d) Payment of Taxes and Claims. The REIT shall and shall cause each of
its Consolidated Subsidiaries to pay (i) all taxes, assessments and other
governmental charges imposed upon it or on any of its properties or assets or in
respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, the failure to make payment of which will
have a Material Adverse Effect on such Person, and (ii) all claims (including
claims for labor, services, materials and supplies) for sums, material in the
aggregate to such Person, which have become due and payable and which by law
have or may become a Lien other than a judgment lien upon any of such Person's
properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto. Notwithstanding the foregoing, the REIT may
contest by appropriate legal proceedings conducted in good faith and with due
diligence, the amount, validity or application, in whole or in part, of any
taxes, assessments, other governmental charges or claims described above,
provided that the REIT shall provide such security as may be required by the
Administrative Agent to insure ultimate payment of the same and to prevent any
sale or forfeiture of the REIT's or any Consolidated Subsidiary's real property
assets (or any portion thereof or interest therein); provided, that the
provisions of this Section 7.2(d) shall not be construed to permit the REIT to
contest the payment of any Obligations or any other sums payable by the REIT to
the Administrative Agent or the Banks hereunder or under any other Loan
Document. Notwithstanding any of the foregoing, the REIT shall indemnify, defend
and save the Administrative Agent and the Banks harmless from and against any
liability, cost or expense of any kind that may be imposed on the Administrative
Agent or the Banks in connection with any such contest and any loss resulting
therefrom.
(e) Maintenance of Properties; Insurance. The REIT shall and shall
cause each of its Consolidated Subsidiaries to maintain in good repair, working
order and condition, excepting ordinary wear and tear, all of its real property
assets and will make or cause to be made all appropriate repairs, renewals and
replacements thereof. The REIT shall and shall cause each of its Consolidated
Subsidiaries to maintain commercially reasonable and appropriate amounts of fire
and extended coverage and liability insurance.
(f) Inspection of Property; Books and Records; Discussions. The REIT
shall permit, and shall cause each of its Consolidated Subsidiaries to permit,
any authorized representative(s) designated by the Administrative Agent or any
Bank to visit and inspect any of its properties, to inspect financial and
accounting records and leases, and all other books and records of the REIT and
each Consolidated Subsidiary, and to make copies and take extracts therefrom,
all at such times during normal business hours and as often as the
Administrative Agent or any Bank may reasonably request, upon not less than two
(2) business days' notice. In connection therewith, the REIT shall pay all
expenses of the types described in Section 13.3. The REIT will and will cause
each of its Consolidated Subsidiaries to keep proper books of record and account
in which entries, in conformity with GAAP and as otherwise required by this
Agreement and applicable Requirements of Law, shall be made of all dealings and
transactions in relation to its businesses and activities.
<PAGE>
(g) Maintenance of Permits, Etc. The REIT will and will cause each of
its Consolidated Subsidiaries to maintain in full force and effect all Permits,
franchises, patents, trademarks, trade names, copyrights, authorizations or
other rights necessary for the operation of its business, except where the
failure to obtain any of the foregoing would not have a Material Adverse Effect;
and notify the Administrative Agent in writing, promptly after learning thereof,
of the suspension, cancellation, revocation or discontinuance of or of any
pending or threatened action or proceeding seeking to suspend, cancel, revoke or
discontinue any material Permit, patent, trademark, trade name, copyright,
governmental approval, franchise authorization or right.
(h) Further Assurances. The REIT shall, and shall cause its
Consolidated Subsidiaries to, execute and deliver within thirty (30) days after
request therefor by the Administrative Agent or the Banks, all further
instruments and documents and take all further action that the Administrative
Agent or Banks may reasonably request, in order (i) to correct any defect, error
or omission in this Agreement, the Notes and the other Loan Documents, (ii) to
carry out any syndication of the Loans hereunder, (iii) to perfect and maintain
the validity, effectiveness and priority of any security interests intended to
be created by the Loan Documents and (iv) to better assure, convey, grant,
assign, transfer, preserve, protect and confirm unto the Administrative Agent
and the Banks, the rights and remedies granted now or hereafter intended to be
granted to the Administrative Agent or the Banks under the Loan Documents or
under any other instrument or document executed in connection therewith.
(i) Payment of Obligations. The REIT will pay and discharge, and cause
each of its Consolidated Subsidiaries to pay and discharge, at or before
maturity, all its material obligations and liabilities, including any obligation
pursuant to any agreement by which it or any its Real Property Assets is bound
and any Tax liabilities, in any case, where failure to do so will likely result
in a Material Adverse effect on the REIT, except (i) such Taxes may be contested
in good faith by appropriate proceedings and so long as the REIT will maintain
in accordance with GAAP, appropriate reserves for the accrual of any of the
same; or (ii) such obligation or liability as may be contested in good faith by
appropriate proceedings.
(j) REIT's Continued Status as a Real Estate Investment Trust;
Prohibited Transactions. The REIT (i) will not revoke its election to be a real
estate investment trust, (ii) will not engage in any "prohibited transactions"
as defined in Section 856(b)(6)(iii) of the Internal Revenue Code (or any
successor provision thereto) and (iii) will continue to be entitled to a
dividend paid deduction meeting the requirements of Section 857 of the Internal
Revenue Code.
(k) Year 2000 Compliance Efforts. The REIT and each of its Consolidated
Subsidiaries has taken and will continue to take, all reasonable actions to
assure that its computer based systems are able to effectively process data,
including dates on and after January 1, 2000, and to avoid serious disruption to
its business or operations and the REIT and each of its Consolidated
Subsidiaries will notify the Administrative Agent of any material risk of its
inability to so process data and avoid serious disruption which could have a
Material Adverse Effect.
<PAGE>
ARTICLE VIII
NEGATIVE COVENANTS
The Borrower covenants and agrees that, on and after the date hereof,
until payment in full of all of the Obligations, the expiration of the
Commitments and termination of this Agreement:
SECTION 8.1. With Respect to the Borrower and its Consolidated
Subsidiaries. Neither the Borrower nor any Consolidated Subsidiary of the
Borrower shall:
(a) Liens. Directly or indirectly create, incur, assume or permit to
exist any Lien on or with respect to any Real Property Asset, except for
Permitted Liens.
(b) Debt. Directly or indirectly create, incur, assume or permit to
exist any Debt other than Permitted Debt.
(c) Transfers of Assets. Sell, grant, convey, transfer, pledge or
assign, directly or indirectly, individually or in one or more related
transactions, all or any interest in one or more assets to the extent the value
of such interest exceeds in any single calendar year, in the aggregate, five
percent (5%) of Total Asset Value as reported on the most recent Compliance
Certificate delivered to the Administrative Agent pursuant to Section 6.1(c),
without the prior written consent of the Banks; provided, however, that the
Banks hereby consent to the sale of the Jacksonville and Corporate Center East
properties, subject to the satisfaction of the following requirements:
(i) the Borrower notifies the Banks of any such sale not less
than thirty (30) days in advance;
(ii) both immediately before and after such sale there shall
exist no Possible Default or Event of Default; and
(iii) not later than the closing date of such sale the
Borrower delivers to the Banks a certificate, signed by an executive
officer of the Borrower, confirming the satisfaction of condition (ii)
above.
(d) Restrictions on Fundamental Changes.
(i) As to the Borrower only, enter into any merger,
reorganization or consolidation, liquidate, wind-up or dissolve (or
suffer any liquidation or dissolution) without the unanimous prior
written consent of the Banks, in each case;
(ii) Change its Fiscal Year;
<PAGE>
(iii) Engage in any line of business other than as expressly
permitted under Section 7.1(h), without the prior written consent of
the Required Banks; or
(iv) Create any Subsidiary, whether a Consolidated Subsidiary
or not, or otherwise conduct its business other than directly, without
the unanimous prior written consent of the Banks, in each case;
provided, however, that, upon not less than thirty (30) days prior
notice to the Banks, Borrower may create and maintain a wholly owned
Consolidated Subsidiary so long as such subsidiary is a single-purpose
entity formed for the sole purpose of owning a particular, single Real
Estate Asset.
(e) ERISA. Do, or permit any ERISA Affiliate of the Borrower to, do any
of the following to the extent that such act or failure to act would result in
the aggregate, after taking into account any other such acts or failure to act,
in a Material Adverse Effect on the Borrower:
(i) Engage, or knowingly permit an ERISA Affiliate of the
Borrower to engage, in any prohibited transaction described in Section
406 of the ERISA or Section 4975 of the Internal Revenue Code which is
not exempt under Section 407 or 408 of ERISA or Section 4975(d) of the
Internal Revenue Code for which a class exemption is not available or a
private exemption has not been previously obtained from the DOL;
(ii) Permit to exist any accumulated funding deficiency (as
defined in Section 302 of ERISA and Section 412 of the Internal Revenue
Code), whether or not waived;
(iii) Fail, or permit an ERISA Affiliate of the Borrower to
fail, to pay timely required contributions or annual installments due
with respect to any waived funding deficiency to any Plan if such
failure could result in the imposition of a Lien or otherwise would
have a Material Adverse Effect on the Borrower;
(iv) Terminate, or permit an ERISA Affiliate of the Borrower
to terminate, any Benefit Plan which would result in any liability of
the Borrower or any ERISA Affiliate of any of them under Title IV of
ERISA; or
(v) Fail, or permit any ERISA Affiliate of the Borrower to
fail, to pay any required installment under section (m) of Section 412
of the Internal Revenue Code or any other payment required under
Section 412 of the Internal Revenue Code on or before the due date for
such installment or other payment if such failure could result in the
imposition of a Lien on any assets of, or otherwise would have a
Material Adverse Effect on, the Borrower.
(f) Restrictions on Modifications to Documents. Amend, restate or
otherwise modify, or consent or agree to amend, restate or otherwise modify, in
any way to the detriment of the Administrative Agent or the Banks, the
organizational documents of the Borrower or any of its Consolidated
Subsidiaries, without the prior written consent of the Banks.
<PAGE>
(g) Restrictions on Modifications to Homburg Subscription Agreement and
Pennsylvania Acquisition Properties Purchase Agreements. Amend, restate or
otherwise modify or waive any requirement under, or consent or agree to amend,
restate or otherwise modify or waive any requirement under, the Homburg
Subscription Agreement or any of the Pennsylvania Acquisition Property Purchase
Agreements.
SECTION 8.2. Margin Regulations. No portion of the proceeds of any
Loans shall be used in any manner which might cause the extension of credit or
the application of such proceeds to violate Regulations T, U or X or any other
regulation of the Federal Reserve Board or to violate the Securities Exchange
Act or the Securities Act, in each case as in effect on the applicable date of
funding set forth in any Notice of Borrowing.
SECTION 8.3. Management; Change in Control. (a) Leo S. Ullman and
Brenda J. Walker shall remain the President and Vice President of the Borrower,
respectively, at all times up to the Maturity Date, provided that, if due to
death or incapacity or removal from senior management, either of such Senior
Officers are unable to act in such capacity, then the Borrower shall, at the
election and upon the demand of the Required Banks, pay in full all Obligations
under the Loan Documents not later than one hundred twenty (120) days thereafter
whereupon this Agreement and the Commitments hereunder shall be terminated. No
further Borrowings shall be permitted from the time any Senior Officer becomes
unable to hold, or cease holding such offices of the Borrower. The Senior
Officers shall at all times maintain, in the aggregate, a fifty percent (50%)
ownership interest in the Advisor and maintain, in the aggregate, a fifty
percent (50%) ownership interest in the Manager.
(b) No Change in Control shall occur.
(c) The Advisor shall at all times manage the Borrower and the REIT.
(d) The Manager shall at all times manage the Real Property Assets.
SECTION 8.4. Organization of REIT; NASDAQ or NYSE Listing. The REIT
shall at no time cease to be a qualified real estate investment trust in
accordance with Section 7.2(j). The REIT shall at all times maintain listing of
its shares on the NASDAQ or the NYSE.
SECTION 8.5. Organization of Borrower. The Borrower shall remain a
Delaware limited partnership with the REIT as its sole general partner. At no
time shall the Borrower be taxed as an association under the Internal Revenue
Code.
SECTION 8.6. Material Acquisitions. The Borrower will not purchase,
lease or otherwise acquire all or substantially all of the assets of any Person
(or all or substantially all of the assets of a division of any Person) or one
hundred percent (100%) of the capital stock, partnership interest or other
similar ownership interest of any Person, to the extent the purchase or
acquisition price of such assets or capital stock or other ownership interest of
such Person exceeds twenty-five percent (25%) of Total Asset Value.
<PAGE>
SECTION 8.7. Restriction on Major Lease Modifications. The Borrower
shall not, and shall not permit any Consolidated Subsidiary to, amend, modify or
waive the provisions of any Major Lease in any material respect, nor shall the
Borrower or any Consolidated Subsidiary terminate, reduce the rents under or
shorten the term of any Major Lease, nor shall the Borrower or any Consolidated
Subsidiary agree to do any of the foregoing, without in each case the
Administrative Agent's prior written consent, in its sole discretion.
SECTION 8.8. Prohibitions of Cross-Default and Cross-Collateralization.
Without limiting the provisions of this Agreement restricting the Debt of
Borrower and its Consolidated Subsidiaries to Permitted Debt, the Borrower shall
not, and shall not permit any Consolidated Subsidiary to (a) agree with any
lender providing Debt other than the Loans ("Third-Party Loans") to Borrower or
a Consolidated Subsidiary of Borrower that an Event of Default or a Possible
Default under the Loan Documents will, either immediately or after notice and
the lapse of any applicable cure period, constitute a Default under any
Third-Party Loan; (b) agree with any lender or lenders providing one (1) or more
Third-Party Loans to Borrower or a Consolidated Subsidiary that a default under
one (1) or more Third-Party Loans will, either immediately or after notice and
the lapse of any applicable cure period, constitute a default under one (1) or
more other Third-Party Loans; or (c) provide or agree to provide as collateral
for any Third-Party Loan assets of such Borrower or Consolidated Subsidiary of
Borrower that serves as collateral for any other Third-Party Loan, unless the
Banks shall have consented in advance to such cross-collateralization
(Third-Party Loans approved for cross-collateralization are referred to herein
as "Approved Cross-Collateralized Third-Party Loans"); provided, however, that
the aggregate amount of all such Approved Cross-Collateralized Third-Party Loans
shall not exceed an amount that is forty percent (40%) of Consolidated Total
Liabilities (excluding the Obligations), as of any date of determination.
ARTICLE IX
FINANCIAL COVENANTS
The Borrower covenants and agrees that, on and after the date hereof,
until payment in full of all of the Obligations, the expiration of the
Commitments and termination of this Agreement:
SECTION 9.1. Leverage Ratio. The Leverage Ratio, measured as the last
day of each Fiscal Quarter, shall not exceed sixty-five one hundredths (0.65):
one and zero one hundredths (1.0).
SECTION 9.2. Debt Service Coverage Ratio. The Debt Service Coverage
Ratio, measured as of the last day of each Fiscal Quarter, shall equal or exceed
one and five one hundredths (1.5): one and zero one hundredths (1.0).
<PAGE>
SECTION 9.3. Mortgaged Property Aggregate Occupancy Rate. The Mortgaged
Property Aggregate Occupancy Rate, measured as of the last day of each Fiscal
Quarter, shall not be less than eighty-five percent (85%); provided, that
Broadbent shall not be included in the determination of Mortgaged Property
Aggregate Occupancy Rate during the first three (3) calendar months occurring
after the Closing Date.
SECTION 9.4. Minimum Tangible Net Worth. The Borrower will maintain a
minimum Tangible Net Worth, measured as of the last day of each Fiscal Quarter,
in an amount equal to the sum of (a) Ten Million Dollars ($10,000,000) plus (b)
eighty-five percent (85%) of Net Offering Proceeds, if any, following the
Closing Date.
SECTION 9.5. Distributions. The Borrower will not, as determined on a
rolling four (4) Fiscal Quarters basis, pay any dividends or other distributions
in excess of the greater of (a) seventy-five percent (75%) of Funds Available
for Distribution for such four (4) Fiscal Quarters, and (ii) an amount which it
reasonably believes is necessary for it to (i) maintain its qualifications as a
real estate investment trust for federal and state income tax purposes, and (ii)
avoid the payment of federal or state income or excise tax; provided, however
that, during the occurrence and continuation of an Event of Default under
Article X, the Borrower shall pay only those dividends or distributions to its
shareholders that it reasonably believes are necessary to maintain its status as
a real estate investment trust for federal and state income tax purposes.
Notwithstanding the foregoing, prior to the addition of the Pennsylvania
Acquisition Properties, Borrower may maintain a distribution rate of forty cents
($0.40) per share.
SECTION 9.6. Restrictions on Investments. (a) Borrower may make
investments in Land; provided, that (i) the aggregate amount of such investments
does not exceed five percent (5%) of Total Asset Value and (ii) any such Land is
limited to peripheral land and outlots contiguous to Real Property Assets.
(b) Borrower may make investments in or advances to Minority Holdings;
provided, that the aggregate amount of such investments does not exceed five
percent (5%) of Total Asset Value.
(c) Borrower may make investments in Construction in Progress;
provided, that the aggregate amount of such investments does not exceed ten
percent (10%) of Total Asset Value.
(d) For purposes of calculating compliance with the restrictions set
forth in this Section 9.6;
<PAGE>
(i) the amount of each investment in (A) Land will be deemed
to be the amount at which such asset is carried on the Borrower's
books, (B) Minority Holdings will be deemed to be an amount equal to
(XX) the Adjusted Consolidated EBITDA of each Minority Holding for the
most recently ended Fiscal Quarter, times four (4), divided by the FMV
Cap Rate; plus (YY) the Borrower's pro rata share of the Acquisition
Price paid for any Real Property Asset acquired by a Minority Holding
during the most recently ended Fiscal Quarter, (C) Construction in
Progress will be deemed to be the costs at which such Construction in
Progress is required by GAAP to be reported, provided, that, in the
case of Construction in Progress at a Real Property Asset that is owned
by a Minority Holding and guaranteed by the Borrower, the value of such
Construction in Progress will be deemed to be one hundred percent
(100%) of the costs of such Construction in Progress and not the
Borrower's pro rata share of such costs;
(ii) in the case of each investment in Land and Minority
Holdings, the nature of the underlying Real Property Asset and the
conduct of business in respect thereof shall in all respects comply
with the limitations set forth in Section 7.1(h); and
(iii) any Land upon which the Borrower plans to commence
construction (as evidenced by the pouring of footers on foundations)
within six (6) months from the date of acquisition by either the
Borrower or a Consolidated Subsidiary of the Borrower shall not be
subject to the above limitation on investments in Land, and shall not
be included in such calculation, and shall, instead, be included in
Construction in Progress, provided, that such classification as
Construction in Progress shall cease to apply in the event that
construction has not commenced at the end of such six (6) month period,
whereupon the Land classification shall apply, until such time as the
Land again qualifies as Construction in Progress, as provided above.
SECTION 9.7. Calculation. Each of the foregoing ratios and financial
requirements shall be calculated as of the last day of each Fiscal Quarter, but
shall be satisfied at all times.
ARTICLE X
DEFAULTS
SECTION 10.1. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) Failure to Make Payments When Due. The Borrower shall fail to pay
(i) any amount due on the Maturity Date, (ii) any principal when due, or (iii)
any interest on any Loan, or any fee or other amount payable under any Loan
Documents, when due.
(b) Certain Defaults. The Borrower shall fail to comply with any
covenant contained in the following Sections of this Agreement, subject to and
within the cure periods for such Sections as set forth in this Section 10.1(b):
(i) 3.4(b) and Borrower fails to comply with such Section
3.4(b) within ten (10) days after written notice from Administrative
Agent to Borrower;
(ii) 4.25;
<PAGE>
(iii) 6.1(g) and Borrower fails to comply with such Section
6.1(g) within ten (10) days after written notice from Administrative
Agent to Borrower; provided, however, that Borrower shall be entitled
to the notice and ten (10)-day grace period referred to in this Section
10.1(b)(iii) only one (1) time during the Term.;
(iv) 7.1(a) and 7.1(f);
(v) 7.2(a) and 7.2(f);
(vi)8.1(b), 8.1(c) and 8.1(d);
(vii) 8.3; 8.4; 8.6 and 8.8; and
(viii) 9.1, 9.2, 9.3, 9.4, 9.5, 9.6 and 9.7.
(c) Other Defaults. The Borrower or the REIT shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on it under this Agreement or under any of the other Loan Documents (other than
as described in any other provision of this Section 10.1), and with respect to
agreements, covenants or obligations for which no time period for performance is
otherwise provided, such failure shall continue for thirty (30) days after the
Borrower or the REIT knew of such failure (or such lesser period of time as is
mandated by applicable Requirements of Law); provided, that if such failure is
not capable of cure within such thirty (30) day period, then if the Borrower or
the REIT promptly undertakes action to cure such failure and thereafter
diligently prosecutes such cure to completion within sixty (60) days after the
Borrower or the REIT knew of such failure, the Borrower or the REIT shall not be
in default hereunder.
(d) Breach of Representation or Warranty. Any representation or
warranty made or deemed re-made in accordance with the terms of this Agreement
by the Borrower to the Administrative Agent and the Banks herein or in any of
the other Loan Documents or in any statement, certificate or financial
statements at any time given by the Borrower or the REIT pursuant to any of the
Loan Documents shall be false or misleading in any material respect on the date
as of which made.
(e) Default as to Other Debt. (i) The Borrower, the REIT or any
Consolidated Subsidiary of either shall have (A) failed to pay when due (either
immediately or after notice and the lapse of any applicable cure period) any
amount in respect of any Debt of such party other than the Obligations if the
aggregate amount of such Debt is Two Million and 00/100 Dollars ($2,000,000.00)
or more; or (B) otherwise defaulted (either immediately or after notice and the
lapse of any applicable cure period) under any Debt of such Person other than
the Obligations if the holder of such Debt has accelerated or has the right to
accelerate such Debt; or (ii) the holder(s) of any Lien, in any amount,
commences foreclosure of such Lien upon any Real Property Asset owned by the
Borrower or any Consolidated Subsidiary and such foreclosure action is not
dismissed or the underlying Lien released within sixty (60) days of the filing
of such action.
<PAGE>
(f) Involuntary Bankruptcy, Appointment of Receiver, etc.
(i) An involuntary case shall be commenced against the
Borrower, the REIT, any Consolidated Subsidiary of either or any
Minority Holding of either and the petition shall not be dismissed
within sixty (60) days after commencement of the case, or a court
having jurisdiction shall enter a decree or order for relief in respect
of any such Person in an involuntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any
applicable federal, state or foreign law; or
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Borrower, the REIT, any Consolidated Subsidiary of either or any
Minority Holding of either, or over all or a substantial part of the
property of any such Person, shall be entered; or an interim receiver,
trustee or other custodian of any such Person or of all or a
substantial part of the property of any such Person, shall be appointed
or a warrant of attachment, execution or similar process against any
substantial part of the property of any such Person, shall be issued
and any such event shall not be stayed, vacated, dismissed, bonded or
discharged within sixty (60) days of entry, appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower,
the REIT, any Consolidated Subsidiary of either or any Minority Holding of
either shall have an order for relief entered with respect to it or commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or shall consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking of possession by a receiver, trustee or other custodian for all or a
substantial part of its property; any such Person shall make any assignment for
the benefit of creditors or shall be unable or fail, or admit in writing its
inability, to pay its debts as such debts become due; or any Consolidated
Subsidiary of either, or any Minority Holding of either or the Borrower's Board
of Directors (or any committee thereof), adopts any resolution or otherwise
authorizes any action to approve any of the foregoing.
<PAGE>
(h) Judgments and Attachments. (i) Any money judgment (other than a
money judgment covered by insurance but only if the insurer has admitted
liability with respect to such money judgment), writ or warrant of attachment,
or similar process involving in any case an amount in excess of Five Hundred
Thousand and 00/100 Dollars ($500,000.00) shall be entered or filed against the
Borrower, the REIT or any Consolidated Subsidiary of either or their respective
assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of thirty (30) days, or (ii) any judgment or order of any court or
administrative agency awarding material damages shall be entered against any
such Person in any action under the Federal securities laws seeking rescission
of the purchase or sale of, or for damages arising from the purchase or sale of,
any securities, such judgment or order shall have become final after exhaustion
of all available appellate remedies and, in the Administrative Agent's judgment,
the payment of such judgment or order would have a Material Adverse Effect on
such Person.
(i) Dissolution. Any order, judgment or decree shall be entered against
the Borrower, the REIT or any Consolidated Subsidiary of either decreeing its
involuntary dissolution or liquidation and such order shall remain undischarged
and unstayed for a period in excess of thirty (30) days; or the Borrower or the
REIT shall otherwise dissolve or cease to exist.
(j) Loan Documents; Failure of Subordination. If for any reason any
Loan Document shall cease to be in full force and effect or any Obligation shall
be subordinated in right of payment to any other liability of the Borrower, the
REIT or any Consolidated Subsidiary of either, and, in either such case, such
condition or event shall continue for thirty (30) days after the Borrower or the
REIT knew of such condition or event.
(k) ERISA Liabilities. Any Termination Event occurs which will or is
reasonably likely to subject the Borrower, the REIT or any ERISA Affiliate to a
liability which the Administrative Agent reasonably determines will have a
Material Adverse Effect on the Borrower, or the REIT, or the plan administrator
of any Benefit Plan applies for approval under Section 412(d) of the Internal
Revenue Code for a waiver of the minimum funding standards of Section 412(a) of
the Internal Revenue Code and the Administrative Agent reasonably determines
that the business hardship upon which the Section 412(d) waiver was based will
or would reasonably be anticipated to subject the Borrower or any ERISA
Affiliate to a liability which the Administrative Agent determines will have a
Material Adverse Effect on the Borrower or the REIT.
(l) Environmental Liabilities. The Borrower, the REIT or any
Consolidated Subsidiary of either becomes subject to any Liabilities and Costs
(not previously disclosed to and approved by the Banks) which the Administrative
Agent reasonably deems to have a Material Adverse Effect on the Borrower or the
REIT arising out of or related to (i) the Release or threatened Release at any
Real Property Asset of any Contaminant into the environment, or any Remedial
Action in response thereto, or (ii) otherwise any violation of any Environmental
Laws.
(m) Solvency; Material Adverse Change. The Borrower, the REIT or any
Consolidated Subsidiary of either shall cease to be Solvent, or there shall have
occurred any material adverse change in the business, operations, properties,
assets or condition (financial or otherwise) of the Borrower, the REIT or any
Consolidated Subsidiary of either.
(n) Failure of Lien, Mortgage. Any Mortgage or Lien granted hereunder
shall (except in accordance with the terms hereof or thereof), in whole or in
part, terminate, cease to be effective or cease to be a legally valid, binding
and enforceable obligation of the Borrower, or any Lien securing the Loans
shall, in whole or in part, cease to be a perfected first priority Lien, subject
to the Permitted Exceptions (as defined in the Mortgages).
<PAGE>
SECTION 10.2. Rights and Remedies. (a) Upon the occurrence of any Event
of Default described in Sections 10.1(f) or (g), the unpaid principal amount of,
and any and all accrued interest on, the Loans and any and all accrued fees and
other Obligations hereunder shall automatically become immediately due and
payable, with all additional interest from time to time accrued thereon and
without presentation, demand, or protest or other requirements of any kind
(including valuation and appraisement, diligence, presentment, notice of intent
to demand or accelerate and notice of acceleration), all of which are hereby
expressly waived by the Borrower; and upon the occurrence and during the
continuance of any other Event of Default, the Administrative Agent may exercise
any of its rights and remedies hereunder and by written notice to the Borrower,
declare the unpaid principal amount of and any and all accrued and unpaid
interest on the Loans and any and all accrued fees and other Obligations
hereunder to be, and the same shall thereupon be, immediately due and payable
with all additional interest from time to time accrued thereon and without
presentation, demand, or protest or other requirements of any kind other than as
provided in the Loan Documents (including valuation and appraisement, diligence,
presentment, and notice of intent to demand or accelerate), all of which are
hereby expressly waived by the Borrower.
(b) Notwithstanding the foregoing, upon the occurrence and during the
continuance of any Event of Default other than any Event of Default described in
Sections 10.1(f) or (g), the Administrative Agent shall not exercise any of its
rights and remedies hereunder nor declare the unpaid principal amount of and any
and all accrued and unpaid interest on the Loans and any and all accrued fees
and other Obligations hereunder to be immediately due and payable, until such
time as the Administrative Agent shall have delivered a notice to the Banks and
the Borrower specifying the Event of Default which has occurred and whether
Administrative Agent recommends the acceleration of the Obligations due
hereunder or the exercise of other remedies hereunder. The Banks shall notify
the Administrative Agent if they approve or disapprove of the acceleration of
the Obligations due hereunder or the exercise of such other remedy recommended
by Administrative Agent within five (5) Domestic Business Days after receipt of
such notice. If any Bank shall not respond within such five (5) Domestic
Business Day period, then such Bank shall be deemed to have accepted
Administrative Agent's recommendation for acceleration of the Obligations due
hereunder or the exercise of such other remedy. If the Required Banks shall
approve the acceleration of the Obligations due hereunder or the exercise of
such other remedy, then Administrative Agent shall declare the unpaid principal
amount of and any and all accrued and unpaid interest on the Loans and any and
all accrued fees and other Obligations hereunder to be immediately due and
payable or exercise such other remedy approved by the Required Banks. If the
Required Banks shall neither approve nor disapprove the acceleration of the
Obligations due hereunder or such other remedy recommended by Administrative
Agent, then Administrative Agent may accelerate the Obligations due hereunder or
exercise any of its rights and remedies hereunder in its sole discretion. If the
Required Banks shall disapprove the acceleration of the Obligations due
hereunder or the exercise of such other remedy recommended by Administrative
Agent, but approve of another remedy, then to the extent permitted hereunder,
Administrative Agent shall exercise such other remedy, but shall not accelerate
the Obligations.
<PAGE>
SECTION 10.3. Notice of Default. If the Administrative Agent shall not
already have given any notice to the Borrower under Section 10.1, the
Administrative Agent shall give notice to the Borrower promptly upon being
requested to do so by the Required Banks and shall thereupon notify all the
Banks thereof.
SECTION 10.4. Waivers of Demand. Demand, presentment, protest and
notice of nonpayment are hereby waived by the Borrower. The Borrower also
waives, to the extent permitted by law, the benefit of all valuation, appraisal
and exemption laws.
SECTION 10.5. Waivers, Amendments and Remedies. No delay or omission of
the Administrative Agent or the Banks to exercise any right under any Loan
Document shall impair such right or be construed to be a waiver of any Event of
Default or an acquiescence therein, and any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in a writing signed by the Administrative Agent after obtaining written approval
thereof or the signature thereon of those Banks required to approve such waiver,
amendment or other variation, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Administrative
Agent and the Banks until the Obligations have been paid in full, the
Commitments have expired or terminated and this Agreement has been terminated.
<PAGE>
ARTICLE XI
THE ADMINISTRATIVE AGENT
SECTION 11.1. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
SECTION 11.2. Administrative Agent and Affiliates. KeyBank National
Association shall have the same rights and powers under this Agreement as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Administrative Agent, and KeyBank National Association and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any subsidiary or affiliate of the
Borrower as if it were not the Administrative Agent hereunder, and the term
"Bank" and "Banks" shall include KeyBank National Association in its individual
capacity.
SECTION 11.3. Action by Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Event of Default, except
as expressly provided in Article X.
SECTION 11.4. Consultation with Experts. Each of the Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
SECTION 11.5. Liability of Administrative Agent. Neither the
Administrative Agent nor any of their respective Affiliates nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or not taken by it in connection herewith (i) with the consent or
at the request of the Required Banks or, where required by the terms of this
Agreement, all of the Banks, or (ii) in the absence of its own gross negligence
or willful misconduct. Neither the Administrative Agent nor any of its
respective directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection with this Agreement or any Borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified in
Article III, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the other Loan Documents or any other instrument or writing furnished
in connection herewith. The Administrative Agent shall not incur any liability
by acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a Bank wire, telex or similar writing) believed by it in
good faith to be genuine or to be signed by the proper party or parties.
SECTION 11.6. Indemnification. Each Bank shall, ratably in accordance
with its Commitment,
<PAGE>
indemnify the Administrative Agent, their respective affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement, the other
Loan Documents or any action taken or omitted by such indemnitees hereunder.
SECTION 11.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under this Agreement.
SECTION 11.8. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving notice thereof to the Banks and the Borrower.
Upon any such resignation or the removal of the Administrative Agent in
accordance with Section 11.11, the Required Banks shall have the right to
appoint a successor Administrative Agent with the consent of the Borrower
provided that no Event of Default shall have occurred and be continuing. If no
successor Administrative Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within thirty (30) days after
the retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be a commercial Bank organized or licensed
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least Fifty Million Dollars
($50,000,000). Concurrent with the effectiveness of such appointment, the
Borrower shall pay to the retiring or removed Administrative Agent any accrued
and unpaid agency fee, or the Administrative Agent shall refund to the Borrower
any prepaid agency fee, in each case prorated to the effective date of such
appointment of a successor Administrative Agent. Upon the acceptance of its
appointment as the Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder first accruing or arising after the effective date of such
retirement. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was the
Administrative Agent.
SECTION 11.9. Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent, for their respective accounts, fees in the amounts and at
the times set forth in the Fee Letter.
SECTION 11.10. Copies of Notices. The Administrative Agent shall
deliver to each Bank a copy of any notice sent to the Borrower by the
Administrative Agent in connection with the performance of its duties as
Administrative Agent hereunder.
<PAGE>
SECTION 11.11. Removal of the Administrative Agent. The Required Banks
(other than the Administrative Agent) may remove the Administrative Agent upon a
unanimous vote at any time for good cause and shall give at least thirty (30)
days' prior written notice of such removal to the Administrative Agent, the
Borrower and all other Banks.
SECTION 11.12. Consent and Approvals. (a) Each consent, approval,
amendment, modification or waiver specifically enumerated in this Section
11.12(a) shall require the consent of the Required Banks:
(i) Approval of any material amendment of organizational and
other documents (Section 8.1(f);
(ii) Acceleration following an Event of Default (Section
10.2(a));
(iii) Approval of the exercise of rights and remedies under
the Loan Documents following an Event of Default (Section 10.2(a));
(iv)Appointment of a successor Administrative Agent (Section
11.8);
(v) Approval of a change in the method of calculation of any
financial covenants, standards or terms as a result a change in
accounting principles (Section 13.9); and
(vi) Except as referred to in subsection (b) below, approval
of any amendment, modification or termination of this Agreement, or
waiver of any provision herein (Section 13.5).
(b) Each consent, approval, amendment, modification or waiver
specifically enumerated in Section 13.5 as requiring the consent of all Banks
shall require the consent of all Banks.
(c) In addition to the required consents or approvals referred to in
subsection (a) above, the Administrative Agent may at any time request
instructions from the Required Banks with respect to any actions or approvals
which, by the terms of this Agreement or of any of the Loan Documents, the
Administrative Agent is permitted or required to take or to grant without
instructions from any Banks, and if such instructions are promptly requested,
the Administrative Agent shall be absolutely entitled to refrain from taking any
action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from taking any action or withholding
any approval under any of the Loan Documents until it shall have received such
instructions from the Required Banks. Without limiting the foregoing, no Bank
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of the Required Banks or, where applicable, all Banks. The Administrative Agent
shall promptly notify each Bank at any time that the Required Banks have
instructed the Administrative Agent to act or refrain from acting pursuant
hereto. If the Required Banks fail to provide such instructions to the
Administrative Agent within ten (10) Domestic Business Days of any request for
instructions delivered by the Administrative Agent to the
<PAGE>
Required Banks, the Administrative Agent shall be entitled to act or refrain
from acting in accordance with the provisions of this Agreement or any Loan
Document, in such manner as it may determine, in its discretion, and the
Administrative Agent shall not be under any liability whatsoever to any Person
for acting or refraining from acting in accordance with the provisions of this
Agreement or any Loan Document, in the absence of instructions from the Required
Banks.
(d) Each Bank agrees that any action taken by the Administrative Agent
at the direction or with the consent of the Required Banks in accordance with
the provisions of this Agreement or any Loan Document, and the exercise by the
Administrative Agent at the direction or with the consent of the Required Banks
of the powers set forth herein or therein, together with such other powers as
are reasonably incidental thereto, shall be authorized and binding upon all
Banks, except for actions specifically requiring the approval of all Banks. All
communications from the Administrative Agent to the Banks requesting the Banks'
determination, consent, approval or disapproval (i) shall be given in the form
of a written notice to each Bank, (ii) shall be accompanied by a description of
the matter or thing as to which such determination, approval, consent or
disapproval is requested, or shall advise each Bank where such matter or thing
may be inspected, or shall otherwise describe the matter or issue to be
resolved, (iii) shall include, if reasonably requested by a Bank and to the
extent not previously provided to such Bank, written materials and a summary of
all oral information provided to the Administrative Agent by the Borrower in
respect of the matter or issue to be resolved and (iv) shall include the
Administrative Agent's recommended course of action or determination in respect
thereof. Each Bank shall reply promptly, but in any event within ten (10)
Domestic Business Days (the "Bank Reply Period"). Unless a Bank shall give
written notice to the Administrative Agent that it objects to the recommendation
or determination of the Administrative Agent (together with a written
explanation of the reasons behind such objection) within the Bank Reply Period,
such Bank shall be deemed to have approved of or consented to such
recommendation or determination. With respect to decisions requiring the
approval of the Required Banks or all Banks, the Administrative Agent shall
submit its recommendation or determination for approval of or consent to such
recommendation or determination to all Banks and upon receiving the required
approval or consent shall follow the course of action or determination
recommended to Banks by the Administrative Agent or such other course of action
recommended by the Required Banks, and each non-responding Bank shall be deemed
to have concurred with such recommended course of action.
ARTICLE XII
CHANGE IN CIRCUMSTANCES
SECTION 12.1. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period for any LIBOR Borrowing:
(a) the Administrative Agent is advised by the Reference Bank that
deposits in dollars (in the applicable amounts) are not being offered to the
Reference Bank in the relevant market for such Interest Period, or
<PAGE>
(b) Banks having fifty percent (50%) or more of the aggregate amount of
the Commitments advise the Administrative Agent that the LIBOR Rate as
determined by the Administrative Agent will not adequately and fairly reflect
the cost to such Banks of funding their LIBOR Loans for such Interest Period
because of (i) any change since the date of this Agreement in any applicable
law, governmental rule, regulation, guideline, order or request (whether or not
having the force of law), or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
guideline, order or request (such as, for example, but not limited to, a change
in official reserve requirements, but in all events, excluding reserves required
under Regulation D to the extent included in the computation of the LIBOR Rate)
and/or (ii) other circumstances affecting such Banks, the interbank Eurodollar
market or the position of such Banks in such market, the Administrative Agent
shall forthwith give notice thereof to the Borrower and the Banks, whereupon
until the Administrative Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks to
make LIBOR Loans shall be suspended. Unless the Borrower notifies the
Administrative Agent at least two (2) Domestic Business Days before the date of
any LIBOR Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing.
SECTION 12.2. Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
existing applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central Bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its LIBOR Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central Bank or comparable agency shall make it unlawful or impossible for any
Bank (or its LIBOR Lending Office) to make, maintain or fund its LIBOR Loans,
and such Bank shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make LIBOR Loans shall be suspended. Before giving
any notice to the Administrative Agent pursuant to this Section, such Bank shall
designate a different LIBOR Lending Office if such designation will avoid the
need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding LIBOR Loans to
maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such LIBOR Loan,
together with accrued interest thereon. Concurrently with prepaying each such
LIBOR Loan, the Borrower shall borrow a Base Rate Loan in an equal principal
amount from such Bank (on which interest and principal shall be payable
contemporaneously with the related LIBOR Loans of the other Banks), and such
Bank shall make such a Base Rate Loan.
SECTION 12.3. Increased Cost and Reduced Return. (a) If, after the date
hereof, the adoption of any applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central Bank or comparable
agency charged with the interpretation or administration
<PAGE>
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central Bank or comparable agency shall impose, modify or deem
applicable any reserve (including any such requirement imposed by the Board of
Governors of the Federal Reserve System (but excluding with respect to any LIBOR
Loan any such requirement reflected in an applicable LIBOR Reserve Percentage)),
special deposit, insurance assessment or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or its Applicable
Lending Office) or on the London interbank market any other condition affecting
its LIBOR Loans, its Note, or its obligation to make LIBOR Loans, and the result
of any of the foregoing is to increase the cost to such Bank (or its Applicable
Lending Office) of making or maintaining any LIBOR Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Bank to be material, then, within fifteen (15) days after
demand by such Bank (with a copy to the Administrative Agent), which demand
shall be accompanied by a certificate showing, in reasonable detail, the
calculation of such amount or amounts, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have reasonably determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central Bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central Bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
reasonably deemed by such Bank to be material, then from time to time, within
fifteen (15) days after demand by such Bank (with a copy to the Administrative
Agent), which demand shall be accompanied by a certificate showing, in
reasonable detail, the calculation of much amount or amounts, the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
(or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 12.4. Taxes. (a) Any and all payments by the Borrower to or for
the account
<PAGE>
of any Bank or the Administrative Agent hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto imposed on it as a result
of the Commitments, this Agreement or any of the other Loan Documents or the
Loans, excluding, in the case of each Bank and the Administrative Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Bank or the Administrative Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Bank, taxes imposed on its income, and franchise or similar taxes imposed on it,
by the jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof (and, if different from the jurisdiction of such Bank's
Applicable Lending Office, the jurisdiction of the domicile of its Loans either
established by the Bank pursuant to Section 13.14 or determined by the
applicable taxing authorities) (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Bank Taxes"). If the Borrower shall be required by law to deduct
any Bank Taxes from or in respect of any sum payable hereunder or under any Note
to any Bank or the Administrative Agent, (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 12.4) such Bank, or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
law and (iv) the Borrower shall furnish to the Administrative Agent, at its
address referred to in Section 12.1, the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Bank and the Administrative
Agent for the full amount of Bank Taxes or Other Taxes (including any Bank Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 12.4) paid by such Bank or the Administrative Agent (as the case
may be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Any payment required under this
indemnification shall be made within fifteen (15) days from the date such Bank
or the Administrative Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
<PAGE>
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first became a
party to this Agreement or at any time thereafter (other than solely by reason
of a change in United States law or a change in the terms of any treaty to which
the United States is a party after the date hereof) indicates a United States
interest withholding tax rate in excess of zero (or would have indicated such a
withholding tax rate if such form had been submitted and completed accurately
and completely and either was not submitted or was not completed-accurately and
completely), or if a Bank otherwise is subject to United States interest
withholding tax at a rate in excess of zero at any time for any reason (other
than solely by reason of a change in United States law or regulation or a change
in any treaty to which the United States is a party after the date hereof),
withholding tax at such rate shall be considered excluded from "Bank Taxes" as
defined in Section 9.4(a). In addition, any amount that otherwise would be
considered "Bank Taxes" or "Other Taxes" for purposes of this Section 12.4 shall
be excluded therefrom if the Bank either has transferred the domicile of its
Loans pursuant to Section 13.12 or changed the Applicable Lending Office with
respect to such Loans and such amount would not have been incurred had such
transfer or change not been made.
(e) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form pursuant to Section 12.4(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 12.4(a) with respect to
Bank Taxes imposed by the United States; provided, that should a Bank, which is
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Bank Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Bank shall reasonably
request to assist such Bank to recover such Bank Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 12.4, then such Bank will change
the jurisdiction of its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if such change, in the
judgment of such Bank, is not otherwise disadvantageous to such Bank.
SECTION 12.5. Base Rate Loans Substituted for Affected LIBOR Loans. If
(i) the obligation of any Bank to make LIBOR Loans has been suspended pursuant
to Sections 12.1 or 12.2 or (ii) any Bank has demanded compensation under
Sections 12.3 or 12.4 with respect to its LIBOR Loans and the Borrower shall, by
at least five (5) LIBOR Business Days' prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Borrower that
the circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) all Loans which would otherwise be made by such Bank as LIBOR Loans
shall be made instead as Base Rate Loans (on which interest and principal shall
be payable contemporaneously with the related LIBOR Loans of the other Banks),
and
(b) after each of its LIBOR Loans has been repaid, all payments of
principal which would otherwise be applied to repay such LIBOR Loans shall be
applied to repay its Base Rate Loans instead.
<PAGE>
SECTION 12.6. Fixed Rate Price Adjustment. The Borrower acknowledges
that prepayment or acceleration of a LIBOR Loan during an Interest Period will
result in the Banks incurring additional costs, expenses and/or liabilities and
that it is extremely difficult and impractical to ascertain the extent of such
costs, expenses and/or liabilities. (For all purposes of this Section 12.6, any
Loan not being made as a LIBOR Loan in accordance with the Notice of Borrowing
therefor, as a result of the Borrower's cancellation thereof or failure to
satisfy the conditions precedent thereto, shall be treated as if such LIBOR Loan
had been prepaid.) Therefore, on the date a LIBOR Loan is prepaid or the date
all sums payable hereunder become due and payable, by acceleration or otherwise
(a "Price Adjustment Date"), the Borrower will pay to the Administrative Agent
for the account of each Bank, (in addition to all other sums then owing), an
amount (the "Fixed Rate Price Adjustment") equal to the then present value of
(A) the amount of interest that would have accrued on the LIBOR Loan for the
remainder of the Interest Period at the rate applicable to such LIBOR Loan, less
(B) the amount of interest that would accrue on the same LIBOR Loan for the same
period if the LIBOR Rate were set on the Price Adjustment Date. The present
value shall be calculated by using as a discount rate the LIBOR Rate quoted on
the Price Adjustment Date. Upon the written notice to the Borrower from the
Administrative Agent, the Borrower shall immediately pay to the Administrative
Agent for the account of the Banks, the Fixed Rate Price Adjustment as
calculated by the Administrative Agent. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of error, be conclusive
and binding on the Borrower.
SECTION 12.7. Other Provisions. The Borrower understands, agrees and
acknowledges the following: (A) no Bank has any obligation to purchase, sell
and/or match funds in connection with the use of the LIBOR Rate as a basis for
calculating the rate of interest on a LIBOR Loan or a Fixed Rate Price
Adjustment; (B) the LIBOR Rate is used merely as a reference in determining such
rate and/or Fixed Rate Price Adjustment; and (C) the Borrower has accepted the
LIBOR Rate as a reasonable and fair basis for calculating such rate and a Fixed
Rate Price Adjustment. The Borrower further agrees to pay the Fixed Rate Price
Adjustment and Bank Taxes, if any, whether or not a Bank elects to purchase,
sell and/or match funds.
<PAGE>
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including Bank wire, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Administrative Agent, at its address or telecopy
number set forth on the signature pages hereof, together with copies thereof, in
the case of the Borrower, to Uni-Invest (U.S.A.) Ltd., 44 South Bayles Avenue,
Port Washington, New York 11050, Attention: Stuart Widowski, Esq., and in the
case of the Administrative Agent, to Thompson Hine & Flory LLP, 127 Public
Square, 3900 Key Tower, Cleveland, Ohio 44114, Attention: Linda A. Striefsky,
Esq., Telephone: (216) 566-5733, Fax: (216) 566-5800, (y) in the case of any
Bank, at its address or fax number set forth on the signature pages hereof or in
its Administrative Questionnaire or (z) in the case of any party, such other
address or telecopy number as such party may hereafter specify for the purpose
by notice to the Administrative Agent, the Banks and the Borrower. Each such
notice, request or other communication shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section, and transmission is confirmed by the sender's telecopy equipment,
(ii) if given by mail, the notice, request or other communication shall be sent
via certified mail, return receipt requested and shall be effective three (3)
days after delivery or (iii) if given by any other means, when delivered at the
address specified in this Section; provided that notices to the Administrative
Agent under Article II or Article XII shall not be effective until received.
SECTION 13.2. No Waivers. No failure or delay by the Administrative
Agent or any Bank in exercising any right, power or privilege hereunder or under
any Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 13.3. Expenses; Indemnification. (a) The Borrower shall pay (i)
all reasonable and customary out-of-pocket expenses of the Administrative Agent
(including reasonable fees and disbursements of special counsel Thompson Hine &
Flory LLP, local counsel for the Administrative Agent, and travel and site
visits (provided that, prior to the occurrence of a Possible Default or Event of
Default, the Borrower shall pay expenses for only one (1) site visit per
Mortgaged Property), third party reports (including Appraisals), mortgage
recording taxes, environmental and engineering expenses) in connection with the
preparation and administration of this Agreement, the Loan Documents, the
Security Documents and the documents and instruments referred to therein, the
syndication of the Loans, any waiver or consent hereunder or any amendment or
modification hereof or any Event of Default or Possible Default hereunder and
(ii) if an Event of Default occurs, all out-of-pocket expenses incurred by the
Administrative Agent and each Bank, including reasonable fees and disbursements
of counsel for the Administrative Agent, in connection with the enforcement of
the Loan Documents and the instruments referred to therein and such Event of
Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower agrees to indemnify the Administrative Agent and each
Bank, their respective affiliates and the respective directors, officers, agents
and employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including the reasonable fees and
<PAGE>
disbursements of counsel and settlements and settlement costs, which may be
incurred by such Indemnitee in connection with any investigative, administrative
or judicial proceeding (whether or not such Indemnitee shall be designated a
party thereto) that may at any time (including at any time following the payment
of the Obligations) be imposed on, asserted against or incurred by any
Indemnitee as a result of, or arising out of, or in any way related to or by
reason of, (i) any of the transactions contemplated by the Loan Documents or the
execution, delivery or performance of any Loan Document (including the
Borrower's actual or proposed use of proceeds of the Loans, whether or not in
compliance with the provisions hereof), (ii) any violation by the Borrower or
the Environmental Affiliates of any applicable Environmental Law, (iii) any
Environmental Claim arising out of the management, use, control, ownership or
operation of property or assets by the Borrower or any of the Environmental
Affiliates, including all on-site and off-site activities involving
Contaminants, (iv) the breach of any environmental representation or warranty
set forth herein, (v) the grant to the Administrative Agent and the Banks of any
Lien in any property or assets of the Borrower or any stock or other equity
interest in the Borrower, and (vi) the exercise by the Administrative Agent and
the Banks of their rights and remedies (including foreclosure) under any
agreements created any such Lien (but excluding, as to any Indemnities, any such
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements incurred solely by reason of (i) the
gross negligence or willful misconduct of such Indemnitee as finally determined
by a court of competent jurisdiction or (ii) any investigative, administrative
or judicial proceeding imposed or asserted against any Indemnitee by any Bank
regulatory agency or by any equity holder of such Indemnitee). The Borrower's
obligations under this Section shall survive the termination of this Agreement
and the payment of the Obligations.
(c) The Borrower shall pay, and hold the Administrative Agent and each
of the Banks harmless from and against, any and all present and future U.S.
stamp, recording, transfer and other similar foreclosure related taxes with
respect to the foregoing matters and hold the Administrative Agent and each Bank
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to such Bank)
to pay such taxes.
SECTION 13.4. Sharing of Set-Offs. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), other than deposits held for the
benefit of third parties, and any other indebtedness at any time held or owing
by such Bank (including by branches and agencies of such Bank wherever located)
to or for the credit or the account of the Borrower against and on account of
the Obligations of the Borrower then due and payable to such Bank under this
Agreement or under any of the other Loan Documents, including all interests in
Obligations purchased by such Bank. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
<PAGE>
to any Note held by it, which is greater than the proportion received by any
other Bank in respect of the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participation in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes.
SECTION 13.5. Amendments and Waivers. Any provision of this Agreement,
the Notes or the other Loan Documents may be amended or waived if, but only if,
such amendment or waiver is in writing and is signed by the Borrower and the
Required Banks (and, if the rights or duties of the Administrative Agent are
affected thereby, by the Administrative Agent); provided that no such amendment
or waiver shall, unless signed by all the Banks, (i) increase or decrease the
Commitment of any Bank (except for a ratable decrease in the Commitments of all
Banks) or subject any Bank to any additional obligation, (ii) change or reduce
the principal of or rate of interest on any Loan or any fees specified herein,
(iii) postpone the date fixed for any payment of principal of or interest on any
Loan or any fees hereunder or for any reduction or termination of any
Commitment, (iv) change the definition of "Required Banks," "Availability" or
"Real Property Asset Value," (v) release the Lien of any Mortgage or otherwise
release any other collateral, (vi) removal of the Administrative Agent pursuant
to Section 11.8, (vii) amend, restate or otherwise modify any Subsidiary
Guaranty, the effect of which is to reduce, release, waive or terminate the any
Subsidiary Guarantor's liability thereunder, (viii) consent to assignment by the
Borrower of all of its duties and Obligations hereunder or (ix) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Banks, which shall be required for the Banks or any of
them to take any action under this Section 13.5 or any other provision of this
Agreement.
SECTION 13.6. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement or the other
Loan Documents without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such participating agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement described in
clauses (i) through (ix) of Section 13.5 without the consent of the Participant.
The Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article IX with respect
<PAGE>
to its participating interest. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one (1) or more banks or other
institutions (each an "Assignee") a portion of its rights and obligations under
this Agreement, the Notes and the other Loan Documents so long as the assigning
Bank retains a Commitment of not less than Ten Million Dollars ($10,000,000),
and such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit J
attached hereto executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Administrative Agent and, provided no
Event of Default shall have occurred and be continuing, the Borrower, which
consent shall not be unreasonably withheld or delayed. Without limiting the
foregoing, Borrower shall have the right, in its sole discretion, to approve any
Banks to which the Administrative Agent assigns a portion of its rights and
obligations hereunder if such assignment occurs contemparously with the original
closing. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note or Notes are issued to
the Assignee. In connection with any such assignment, the transferor Bank shall
pay to the Administrative Agent an administrative fee for processing such
assignment in the amount of Two Thousand Five Hundred Dollars ($2,500). If the
Assignee is not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 12.4.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Sections 12.3 or 12.4
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer in made with the Borrower's prior written
consent or by reason of the provisions of Sections 12.2, 12.3 or 12.4 requiring
such Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 13.7. Marshaling; Recapture. Neither the Administrative Agent
nor any Bank shall be under any obligation to marshal any assets in favor of the
Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent any Bank receives any payment by or on behalf of the
Borrower, which payment or any part thereof is subsequently invalidated,
<PAGE>
declared to be fraudulent or preferential, set aside or required to be repaid to
the Borrower or its estate, trustee, receiver, custodian or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then to the extent of such payment or repayment, the Obligation or part thereof
which has been paid, reduced or satisfied by the amount so repaid shall be
reinstated by the amount so repaid and shall be included within the liabilities
of the Borrower to such Bank as of the date such initial payment, reduction or
satisfaction occurred.
SECTION 13.8. Independence of Covenants. All covenants hereunder shall
be given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not avoid the occurrence of an Event of Default or Possible Event of Default if
such action is taken or condition exists, and if a particular action or
condition is expressly permitted under any covenant, unless expressly limited to
such covenant, the fact that it would not be permitted under the general
provisions of another covenant shall not constitute an Event of Default or
Possible Event of Default if such action is taken or condition exists.
SECTION 13.9. Change in Accounting Principles. Except as otherwise
provided herein, if any changes in accounting principles from those used in the
preparation of the most recent financial statements delivered to the
Administrative Agent pursuant to the terms hereof are hereinafter required or
permitted by the rules, regulations, pronouncements and opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by the Borrower with the agreement of its independent certified
public accountants and such changes result in a change in the method of
calculation of any of the financial covenants, standards or terms found herein,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating the financial condition of the Borrower shall be the
same after such changes as if such changes had not been made; provided, that no
change in GAAP that would affect the method of calculation of any of the
financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to the
Administrative Agent and the Required Banks, to so reflect such change in
accounting principles.
SECTION 13.10. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Administrative Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Administrative Agent in form satisfactory to it of telegraphic, telex or
other written confirmation from such party of execution of a counterpart hereof
by such party).
SECTION 13.11. Survival. All indemnities set forth herein shall survive
the execution and delivery of this Agreement and the other Loan Documents and
the making and repayment of the Loans hereunder.
<PAGE>
SECTION 13.12. Domicile of Loans. Subject to the provisions of Article
XII, each Bank may transfer and carry its Loans at, to or for the account of any
domestic or foreign branch office, subsidiary or affiliate of such Bank.
SECTION 13.13. Limitation of Liability. No claim may be made by the
Borrower or any other Person against the Administrative Agent, or any Bank or
the affiliates, directors, officers, employees, attorneys or agent of any of
them for any consequential or punitive damages in respect of any claim for
breach of contract or any other theory of liability arising out of or related to
the transactions contemplated by this Agreement or by the other Loan Documents,
or any act, omission or event occurring in connection therewith, and the
Borrower hereby waives, releases and agrees not to sue upon any claim for any
such damages, whether or not accrued and whether or not known or suspected to
exist in its favor.
SECTION 13.14. Governing Law; Submission to Jurisdiction. (a) THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF OHIO (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF OHIO OR OF THE
UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF OHIO, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. THE
BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE HAND DELIVERY, OR
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE BORROWER AT ITS ADDRESS SET FORTH BELOW. THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN
ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE ADMINISTRATIVE AGENT, ANY BANK OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.
<PAGE>
SECTION 13.15. Waiver of Jury Trial. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
UNI-INVEST (U.S.A.) PARTNERSHIP, L.P.,
a Delaware limited partnership
BY: UNI-INVEST (U.S.A.), LTD., a Maryland
corporation, its general partner
By:___________________________________________
Print
Name:____________________________________
Title:___________________________________
Address for Notices:
44 South Bayles Avenue
Port Washington, NY 11050
Attention: Leo S. Ullman
Telephone: (516) 767-6492
Telecopy: (516) 767-6497
<PAGE>
TOTAL COMMITMENTS KEYBANK NATIONAL ASSOCIATION,
$10,000,000.00 a national banking association
By:___________________________________
Print
Name:____________________________
Title:___________________________
Address for Notices:
Domestic and LIBOR Lending Office:
127 Public Square
Cleveland, Ohio 44114
Attention: Peter Kurz
Telephone: (216) 689-0340
Telecopy: (216) 689-3566
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent
By:__________________________________
Print
Name:_____________________________
Title:____________________________
Address for Notices: 127 Public Square
Cleveland, Ohio 44114
Attention: Peter Kurz
Telephone: (216) 689-0340
Telecopy: (216) 689-3566
EXHIBIT A
FORM OF AVAILABILITY CERTIFICATE
(See attached)
FORM OF AVAILABILITY CERTIFICATE 1
<PAGE>
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
(See attached)
FORM OF COMPLIANCE CERTIFICATE 1
<PAGE>
EXHIBIT C
REAL PROPERTY ASSETS TO BE ADDED
TO MORTGAGED PROPERTIES AT CLOSING
1. Jacksonville, Florida
2. Salt Lake City, Utah
3. Bloomington, Illinois
LIST OF MORTGAGED PROPERTIES 1
<PAGE>
EXHIBIT D
Form of Note
NOTE
$10,000,000.00 Cleveland, Ohio
May __, 2000
For value received, UNI-INVEST (U.S.A.) PARTNERSHIP, L.P., a Delaware
limited partnership (the "Borrower") promises to pay to the order of KEYBANK
NATIONAL ASSOCIATION (the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on the Maturity
Date. The Borrower promises to pay interest on the unpaid principal amount of
each such Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of the Administrative Agent under the Credit Agreement (as defined
below).
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement
(Secured Acquisition Loan and Revolving Line of Credit), dated as of May __,
2000, by and among the Borrower, the Banks party thereto, KeyBank National
Association, as Administrative Agent (as the same may be amended, modified,
restated, extended or substituted from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the payment and
prepayment hereof and the acceleration of the maturity hereof.
ALL FLORIDA DOCUMENTARY STAMP TAXES AND INTANGIBLE TAXES DUE IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS NOTE HAVE BEEN PROPERLY PAID
AND ARE AFFIXED TO THE FLORIDA MORTGAGE(S) SECURING THIS NOTE.
FORM OF NOTE 1
<PAGE>
UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:___________________________________
Name:______________________________
Title:_____________________________
FORM OF NOTE 2
<PAGE>
STATE OF ______________)
) SS:
COUNTY OF _____________)
This instrument was acknowledged before me this ____ day of May, 2000,
by _______________________________, the ____________________________ of
Uni-Invest (U.S.A.), Ltd., a Maryland corporation, the general partner of
Uni-Invest (U.S.A.) Partnership, L.P., a Delaware limited partnership, who
executed the within instrument and acknowledged that he/she did so execute and
acknowledge such instrument on behalf of such corporation and limited
partnership.
-------------------------------------
Notary Public
FORM OF NOTE 3
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
________________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
FORM OF NOTE 4
<PAGE>
EXHIBIT E
FORM OF NOTICE OF BORROWING
KeyBank National Association
127 Public Square
Cleveland, OH 44114
Attn: Peter Kurz
Uni-Invest (U.S.A.) Partnership, L.P. (the "Borrower") hereby requests
a Loan pursuant to Section 2.3 of the Credit Agreement, dated as of May __, 2000
(as amended, modified, restated, extended or substituted from time to time, the
"Credit Agreement") by and among Borrower and you as a Bank and the
Administrative Agent.
A Loan is requested to be made in the amount of $__________, to be made
on __________ 2000 and evidenced by Borrower's Notes. Such Loan shall be a
[select one] ___ Base Rate Loan ___ LIBOR Loan and the initial Interest Period,
if such requested Loan is a LIBOR Loan, shall be ________________________.
In support of this request, Borrower hereby represents and warrants to
the Administrative Agent and the Banks that:
1. The representations and warranties contained in the Credit Agreement
and in the other Loan Documents are true and correct in all material respects on
and as of the date hereof, and will be true and correct in all material respects
on the date such Loan is made (both before and after such Loan is made) as if
such representations and warranties were made on and as of such dates unless
stated to relate to a specific earlier date.
2. No Event of Default or Possible Default has occurred and is
continuing or will exist on the date such Loan is made and such Loan shall not
cause an Event of Default or Possible Default.
3. The Availability Certificate attached hereto and the computations
contained therein are true and correct.
Acceptance of the proceeds of such Loan by Borrower shall be deemed to
be a further representation and warranty that the representations and warranties
made herein are true and correct in all material respects at the time such
proceeds are disbursed.
Capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Credit Agreement.
1
FORM OF NOTICE OF BORROWING
<PAGE>
UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
Dated: May ___, 2000 By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:_______________________________________
Name:__________________________________
Title:_________________________________
2
FORM OF NOTICE OF BORROWING
<PAGE>
EXHIBIT F
FORM OF INTEREST RATE ELECTION
To: KeyBank National Association, as Administrative Agent
Date: May ___, 2000
Subject: Credit Agreement (Secured Acquisition Loan and Revolving Line
of Credit) dated as of May __, 2000 (the "Credit Agreement"),
by and among Uni-Invest (U.S.A.) Partnership, L.P.
("Borrower"), KeyBank National Association, as Administrative
Agent (the "Administrative Agent") and the Banks which are
parties from time to time thereto (the "Banks").
Ladies and Gentlemen:
Each term in this Interest Rate Election shall be defined in accordance
with the Credit Agreement. Pursuant to the Credit Agreement, we request:
( ) the Banks to convert the LIBOR Loans comprising the LIBOR Borrowing
(or portion thereof) [made] [converted] [continued] on
__________________, 20___, in the original aggregate principal sum of
$_____________, on ______________, 20____, into [Base Rate Loans]
[LIBOR Loans to have an Interest Period of (thirty, ninety or one
hundred eighty) days from the date thereof].
( ) the Banks to convert the Base Rate Loans comprising the Domestic
Borrowing (or portion thereof) [made] [converted] on
___________________, 20___, in the original aggregate principal sum of
$______________, on ______________, 20___, into LIBOR Loans to have an
Interest Period of (thirty, ninety or one hundred eighty) days from the
date thereof.
( ) the Banks to continue the LIBOR Loans comprising the LIBOR
Borrowing (or portion thereof) [made] [converted] [continued] on
__________________, 20___, with a (thirty, ninety or one hundred
eighty) day Interest Period in the original aggregate principal sum of
$_____________, as LIBOR Loans having an Interest Period of the same
duration commencing on _____________________, 20___.
The undersigned represents and warrants that this request is made in
compliance with Section 2.15 of the Credit Agreement.
The undersigned hereby certifies that:
FORM OF NOTICE OF INTEREST 1
RATE ELECTION
<PAGE>
(a) The representations and warranties contained in the Credit
Agreement and in the other Loan Documents are true and correct in all respects
on and as of the date of the rate conversion or rate continuation referred to
herein with the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier date;
and
(b) No Possible Default or Event of Default has occurred and is
continuing, and at the time of, and immediately after, the rate conversion or
rate continuation referred to herein, no Possible Default or Event of Default
shall have occurred and be continuing; and
(c) The Borrower is in compliance with all other terms and provisions
set forth in the Credit Agreement and in each of the other Loan Documents on its
part to be observed or performed.
Very truly yours,
UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:________________________________________
Name:__________________________________
Title:_________________________________
FORM OF NOTICE OF INTEREST 2
RATE ELECTION
<PAGE>
EXHIBIT G
GUARANTY
THIS GUARANTY, dated as of May ___, 2000 (this "Guaranty"), is made by
Uni-Invest (U.S.A.), Ltd., a Maryland corporation ("Guarantor") in favor of
KeyBank National Association, a national banking association ("KeyBank" or
"Administrative Agent"), as Administrative Agent, for the benefit of the Banks
under the Credit Agreement (as defined below).
R E C I T A L S:
A. KeyBank, in its capacity as a Bank and in its capacity as the
Administrative Agent for the Banks, Uni-Invest (U.S.A.) Partnership, L.P., a
Delaware limited partnership ("Borrower") and the Banks party thereto entered
into that certain Credit Agreement (Secured Acquisition Loan and Revolving Line
of Credit) dated as of May ___, 2000 (as the same may from time to time be
amended, modified, restated, extended or substituted, the "Credit Agreement").
B. As a condition to the effectiveness of the obligations of the Banks
under the Credit Agreement, Guarantor is required to guarantee, among other
things, the Obligations of Borrower under the Operative Documents.
C. Guarantor has reviewed the Credit Agreement, the Notes, and all
other documents, agreements, instruments and certificates furnished by or on
behalf of Borrower in connection therewith (all of the foregoing, as amended or
modified from time to time and together with any agreements or instruments in
replacement thereof, being herein collectively referred to as the "Operative
Documents"), and Guarantor has determined that it is in its interest and to its
financial benefit that the parties to the Operative Documents enter into the
transactions contemplated thereby.
For valuable consideration, the receipt of which is hereby acknowledged
and as further consideration, and as an inducement to the Banks to maintain the
credit facilities established by the Operative Documents, Guarantor agrees with
the Administrative Agent for the benefit of the Banks as follows:
1. Guarantee of Obligations. (a) Guarantor hereby (i) guarantees, as
principal obligor and not as surety only, to the Administrative Agent and the
Banks the prompt payment of the principal of and any and all accrued and unpaid
interest (including interest which otherwise may cease to accrue by operation of
any insolvency law, rule, regulation or interpretation thereof) on the Loans and
all other obligations of Borrower to the Administrative Agent and the Banks
under the Credit Agreement when due, whether by scheduled maturity, acceleration
or otherwise, all in accordance with the terms of the Credit Agreement and the
Notes, including, without limitation, default interest, all reimbursement
obligations under any letters of credit, indemnification payments and all
FORM OF GUARANTY 1
<PAGE>
reasonable costs and expenses incurred by the Administrative Agent in connection
with enforcing any obligations of Borrower hereunder, including without
limitation the reasonable fees and disbursements of counsel, (ii) guarantees the
prompt and punctual performance and observance of each and every term, covenant
or agreement contained in any Operative Document to be performed or observed on
the part of Borrower, (iii) guarantees the prompt and complete payment of all
obligations and performance of all covenants of Borrower under any interest rate
or currency swap agreements or similar transactions with the Administrative
Agent or any Bank entered into pursuant to or in connection with the Credit
Agreement and (iv) agrees to make prompt payment, on demand, of any and all
reasonable costs and expenses incurred by the Administrative Agent in connection
with enforcing the obligations of Guarantor hereunder, including, without
limitation, the reasonable fees and disbursements of counsel (all of the
foregoing being collectively referred to as the "Guaranteed Obligations").
(b) If for any reason any duty, agreement or obligation of Borrower
contained in any Operative Document shall not be performed or observed by
Borrower as provided therein, or if any amount payable under or in connection
with any Operative Document shall not be paid in full when the same becomes due
and payable, Guarantor undertakes, but without duplication, to perform or cause
to be performed promptly, each of such duties, agreements and obligations and to
pay forthwith each such amount regardless of any defense or setoff or
counterclaim which Borrower may have or assert, and regardless of any other
condition or contingency.
2. Nature of Guaranty. This Guaranty is an absolute and unconditional
and irrevocable guaranty of payment and not a guaranty of collection and is
wholly independent of and in addition to other rights and remedies of the
Administrative Agent and is not contingent upon the pursuit by the
Administrative Agent of any such rights and remedies, such pursuit being hereby
waived by Guarantor.
3. Waivers and Other Agreements. Guarantor hereby unconditionally (a)
waives any requirement that the Administrative Agent, upon the occurrence of an
Event of Default first make demand upon, or seek to enforce remedies against
Borrower, before demanding payment under or seeking to enforce this Guaranty,
(b) covenants that this Guaranty will not be discharged except by complete
performance of all obligations of Borrower contained in the Operative Documents,
(c) agrees that this Guaranty shall remain in full force and effect without
regard to, and shall not be affected or impaired, without limitation, by any
invalidity, irregularity or unenforceability in whole or in part of any of the
Operative Documents, or any limitation on the liability of Borrower thereunder
(other than those limitations expressly set forth in the other Loan Documents),
or any limitation on the method or terms of payment thereunder which may
hereafter be caused or imposed in any manner whatsoever (including, without
limitation, usury laws), (d) waives diligence, presentment and protest with
respect to, and any notice of default or dishonor in the payment of any amount
at any time payable by Borrower under or in connection with any of the Operative
Documents, and further waives notice of any of the matters referred to in
paragraph 4 below, and further waives all notices which may be required by
statute, rule of law or otherwise to preserve any rights of the Administrative
Agent, including without limitation any requirement of notice of acceptance of,
or other formality relating to this Guaranty to the extent permitted by
FORM OF GUARANTY 2
<PAGE>
applicable law and (e) agrees that the Guaranteed Obligations shall include any
amounts paid by Borrower to the Administrative Agent which may be required to be
returned to Borrower or to a trustee, custodian or receiver for Borrower.
4. Obligations Absolute. The obligations, covenants, agreements and
duties of Guarantor under this Guaranty shall not be released, affected or
impaired by any of the following whether or not undertaken with notice to or
consent of Guarantor: (a) an assignment or transfer, in whole or in part, of any
of the Guaranteed Obligations or any of the Operative Documents although made
without notice to or consent of Guarantor; (b) any waiver by the Administrative
Agent or by any other person, of the performance or observance by Borrower of
any of the agreements, covenants, terms or conditions contained in any of the
Operative Documents; (c) any indulgence in or the extension of the time for
payment by the Borrower of any amounts payable under or in connection with any
of the Operative Documents, or of the time for performance by Borrower of any
other obligations under or arising out of any of the Operative Documents, or the
extension or renewal thereof; (d) the modification, amendment or waiver (whether
material or otherwise) of any duty, agreement or obligation of Borrower set
forth in any of the Operative Documents (the modification, amendment or waiver
from time to time of any of the Operative Documents to which Borrower is a party
being expressly authorized without further notice to or consent of Guarantor);
(e) the voluntary or involuntary liquidation, sale or other disposition of all
or substantially all of the assets of Borrower or any receivership, insolvency,
bankruptcy, reorganization, or other similar proceedings, affecting Borrower or
any of its respective assets; (f) the merger or consolidation of Borrower with
or into any other person or any transfer or other disposition of any shares of
capital stock of Borrower by the holder thereof; (g) the release or discharge of
Borrower by operation of law from the performance or observance of any
agreement, covenant, term or condition contained in any Operative Document; (h)
the release of any security, if any, for the obligations of Borrower under any
of the Operative Documents, or the impairment of or failure to perfect an
interest in any such security; (i) any exercise or non-exercise of any right,
remedy, power or privilege in respect of this Guaranty or any of the Operative
Documents, including without limitation the release, discharge, or variance of
the liability of any other Guarantor of the Guaranteed Obligations; or (j) any
other cause whether similar or dissimilar to the foregoing which would release,
affect or impair the obligations, covenants, agreements or duties of Guarantor
hereunder.
5. No Investigation by the Administrative Agent. Guarantor hereby
waives unconditionally any obligation which, in absence of such provision, the
Administrative Agent might otherwise have to investigate or to assure that there
has been compliance with the law of any jurisdiction with respect to the
Guaranteed Obligations recognizing that, to save both time and expense,
Guarantor has requested that the Administrative Agent not undertake such
investigation. Guarantor hereby expressly confirms that the obligations
hereunder shall remain in full force and effect without regard to compliance or
noncompliance with any such law and irrespective of any investigation or
knowledge of any of the Administrative Agent of any such law.
FORM OF GUARANTY 3
<PAGE>
6. Indemnity. As a separate, additional and continuing obligation,
Guarantor unconditionally and irrevocably undertakes and agrees with the
Administrative Agent that, should the Guaranteed Obligations not be recoverable
from Guarantor under paragraph 1 hereof for any reason whatsoever (including,
without limitation, by reason of any provision of this Guaranty or any Operative
Document being or becoming void, unenforceable, or otherwise invalid under any
applicable law) then, notwithstanding any knowledge thereof by the
Administrative Agent at any time, Guarantor as sole, original and independent
obligor, upon demand by the Administrative Agent, will make payment to the
Administrative Agent of the Guaranteed Obligations by way of a full indemnity in
such currency and otherwise in such manner as is provided in this Guaranty and
the Operative Documents.
7. Subordination. Guarantor agrees that any present or future
indebtedness, obligations or liabilities of Borrower to Guarantor shall be fully
subordinate and junior in right and priority of payment to any present or future
indebtedness, obligations or liabilities of Borrower to the Administrative
Agent. Guarantor waives any right of subrogation to the rights of any other
person obligated for payment of the Guaranteed Obligations and any right of
reimbursement or indemnity whatsoever arising or accruing out of any payment
which Guarantor may make pursuant to this Guaranty and the Notes, and any right
of recourse to security for the debts and obligations of Borrower, unless and
until the entire principal balance of and interest on the Guaranteed Obligations
shall have been paid in full.
8. Representations, Warranties and Covenants. (a) Guarantor represents
and warrants that: (i) the execution, delivery and performance by Guarantor of
this Guaranty are within its corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of the articles of
incorporation or other charter documents or bylaws of Guarantor, or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
such Guarantor or its property; (ii) this Guaranty constitutes a legal, valid
and binding obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights and except that the remedy of specific performance and
injunctive and other forms of equitable relief are subject to equitable defenses
and to the discretion of the court for which any proceedings may be brought; and
(iii) as of the date hereof, each of the following is true and correct: (A) the
fair saleable value and the fair valuation of Guarantor's property is greater
than the total amount of its liabilities (excluding contingent liabilities) and
greater than the amount that would be required to pay its probable aggregate
liability on its existing debts as they become absolute and matured, (B)
Guarantor's capital is not unreasonably small in relation to its current and/or
contemplated business or other undertaken transactions and (C) Guarantor does
not intend to incur, or believe that it will incur, debt beyond its ability to
pay such debts as they become due.
(b) Guarantor covenants and agrees that: (i) it will not directly or
indirectly create, incur, assume or permit to exist any Lien on or with respect
to any Property acquired in whole or in part with the proceeds of any Loan
FORM OF GUARANTY 4
<PAGE>
except as permitted by the Credit Agreement; (ii) it will not convey, sell,
transfer, assign, pledge or otherwise dispose of all or any portion of its
assets to the extent the value of such assets either individually or in the
aggregate exceeds five percent (5%) of the Total Asset Value of all assets of
Guarantor, unless permitted by the Credit Agreement; and (iii) it will not
directly or indirectly create, incur, assume or permit to exist any Debt, except
as permitted by the Credit Agreement.
9. Remedies. (a) Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent, on behalf of the Banks, may, in
addition to the remedies provided in the Operative Documents, enforce its rights
either by suit in equity, or by action at law, or by other appropriate
proceedings, whether for the specific performance (to the extent permitted by
law) of any covenant or agreement contained in this Guaranty or in aid of the
exercise of any power granted in this Guaranty and may enforce payment under
this Guaranty and any of its other rights available at law or in equity.
(b) In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuance of any Event of Default, each Bank is
hereby authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to Guarantor or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final), other than deposits held for payroll or the benefit of third parties,
and any other indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of Guarantor against and on account of the
Guaranteed Obligations then due and payable to such Bank under this Agreement or
under any of the other Loan Documents executed by Guarantor, including, without
limitation, all interests in Guaranteed Obligations purchased by such Bank. Each
Bank agrees that if it shall, by exercising any right of set-off or counterclaim
or otherwise, receive payment of a proportion of the aggregate amount of
principal and interest due with respect to any Note held by it, which is greater
than the proportion received by any other Bank in respect of the aggregate
amount of principal and interest due with respect to any Note held by such other
Bank, the Bank receiving such proportionately greater payment shall purchase
such participations in the Notes held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this paragraph shall
impair the right of any Bank to exercise any right of set-off or counterclaim it
may have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes.
Guarantor agrees, to the fullest extent that it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of Guarantor in the
amount of such participation.
FORM OF GUARANTY 5
<PAGE>
(c) To the extent that it lawfully may, Guarantor agrees that it shall
not apply for or avail itself of any appraisement, valuation, stay, extension or
exemption laws, or any so-called "moratorium laws," now existing or hereafter
enacted, in order to prevent or hinder the enforcement of this Guaranty, or any
of the Operative Documents, but hereby waives the benefit of such laws.
Guarantor, for itself and all who may claim through or under it waives any and
all right to have the property or estates securing its obligations under this
Guaranty or the Operative Documents marshaled upon any foreclosure of the lien
hereof and agrees that any court having jurisdiction to foreclose such lien may
order such property sold as an entirety. To the fullest extent permitted by law,
Guarantor hereby waives any and all rights of redemption from sale under any
order or decree of foreclosure of the instruments securing its obligations under
this Guaranty or Operative Documents, except decree or judgment of creditors of
Guarantor, acquiring any interest in or title to the property or estates
securing its obligations under this Guaranty or the Operative Documents
subsequent to the date of such instruments.
10. Amendments, Etc. This Guaranty may be amended from time to time and
any provision hereof may be waived in accordance with the requirements of
Section 13.5 of the Credit Agreement. No such amendment or waiver of any
provision of this Guaranty nor consent to any departure by any Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
11. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including Bank wire, facsimile transmission
or similar writing) and shall be given to such party at the following addresses:
<TABLE>
<CAPTION>
<S> <C>
To KeyBank: With a copy to:
KeyBank National Association Linda A. Striefsky, Esq.
127 Public Square Thompson Hine & Flory LLP
Cleveland, OH 44114 3900 Key Center, 127 Public Square
Attention: Peter Kurz Cleveland, OH 44114
Phone: (216) 689-0340 Phone: (216) 566-5733
Facsimile: (216) 689-3566 Facsimile: (216) 566-5800
To Guarantor: With a copy to:
Uni-Invest (U.S.A.), Ltd. Uni-Invest (U.S.A.), Ltd.
44 South Bayles Avenue 44 South Bayles Avenue
Port Washington, NY 11050 Port Washington, NY 11050
Attention: Mr. Leo S. Ullman Attention: Stuart Widowski, Esq.
Phone: (516) 767-6492 Phone: (516) 767-6492
Facsimile: (516) 767-6497 Facsimile: (516) 767-6497
</TABLE>
FORM OF GUARANTY 6
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
To Borrower: With a copy to:
Uni-Invest (U.S.A.), Ltd. Uni-Invest (U.S.A.), Ltd.
44 South Bayles Avenue 44 South Bayles Avenue
Port Washington, NY 11050 Port Washington, NY 11050
Attention: Mr. Leo S. Ullman Attention: Stuart Widowski, Esq.
Phone: (516) 767-6492 Phone: (516) 767-6492
Facsimile: (516) 767-6497 Facsimile: (516) 767-6497
</TABLE>
Each such notice, request or other communication shall be effective (i) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section and receipt thereof is confirmed by such party's telecopy
machine, (ii) if given by mail, the notice request or other communication shall
be sent via certified mail, return receipt requested, and shall be effective
three (3) days after delivery or (iii) if given by any other means, when
delivered at the address specified in this Section; provided that notices to the
Administrative Agent shall not be effective until received.
12. Conduct No Waiver; Remedies Cumulative. The obligations of
Guarantor under this Guaranty are continuing obligations and a separate and
independent cause of action shall arise in respect of each enforcement hereunder
and default hereunder or under the Credit Agreement. No course of dealing on the
part of the Administrative Agent or any Bank, nor any delay or failure on the
part of the Administrative Agent in exercising any right, power or privilege
hereunder shall operate as a waiver of such right, power or privilege or
otherwise prejudice the rights and remedies of the Administrative Agent
hereunder, nor shall any single or partial exercise thereof preclude any further
exercise thereof or the exercise of any other right, power or privilege. No
right or remedy conferred upon or reserved to the Administrative Agent under
this Guaranty is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to every other right
or remedy given hereunder or now or hereafter existing under any applicable law.
Every right and remedy given by this Guaranty or by applicable law to the
Administrative Agent may be exercised from time to time and as often as may be
deemed expedient by it.
13. Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of Guarantor made herein
or in any certificate or other document delivered pursuant hereto shall be
deemed to be material and to have been relied upon by the Administrative Agent,
notwithstanding any investigation heretofore or hereafter made by the
Administrative Agent or on its behalf.
14. Successors and Assigns. The rights and remedies of the
Administrative Agent hereunder shall inure to the benefit of the Administrative
Agent and its respective successors and assigns, and the duties and obligations
of Guarantor hereunder shall be binding upon Guarantor and its successors and
assigns.
FORM OF GUARANTY 7
<PAGE>
15. Survival of the Administrative Agent's Rights and Remedies.
Notwithstanding any provision of this Guaranty to the contrary, the execution
and delivery by Guarantor of this Guaranty, and the Administrative Agent's
acceptance thereof, shall not be deemed to (a) be a consent to any action,
whether heretofore or hereafter taken, by Borrower in violation of any provision
of any Operative Document, (b) be a waiver of any provision of any Operative
Document or (c) prejudice any rights or remedies which the Administrative Agent
may now have or have in the future under or in connection with any Operative
Document, including without limitation any such rights or remedies with respect
to any event of default or event causing or permitting acceleration under any
Operative Document which may heretofore have occurred and be continuing or may
hereafter occur.
16. Definitions; Headings. Terms used but not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement. The headings
of the various subdivisions hereof are for convenience of reference only and
shall in no way modify any of the terms or provisions hereof.
17. Integration; Severability; Enforceability. This Guaranty embodies
the entire agreement and understanding between Guarantor and the Administrative
Agent, and supersedes all prior agreements and understandings, relating to the
subject matter hereof. If any one or more provisions of this Guaranty should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected, impaired, prejudiced or disturbed thereby. If at any time any
portion of the obligations of Guarantor under this Guaranty shall be determined
by a court of competent jurisdiction to be invalid, unenforceable or avoidable,
the remaining portion of the obligations of Guarantor under this Guaranty shall
not in any way be affected, impaired, prejudiced or disturbed thereby and shall
remain valid and enforceable to the fullest extent permitted by applicable law.
If at any time all or any portion of the obligations of Guarantor under this
Guaranty would otherwise be determined by a court of competent jurisdiction to
be invalid, unenforceable or avoidable under Section 548 of the Federal
Bankruptcy Code or under a similar applicable law of any jurisdiction, then
notwithstanding any other provisions of this Guaranty to the contrary such
obligation or portion thereof of Guarantor under this Guaranty shall be limited
to the greatest of (a) the value of any quantifiable economic benefits accruing
to Guarantor as a result of this Guaranty, (b) an amount equal to ninety-five
percent (95%) of the excess on the date the relevant Guaranteed Obligations were
incurred of the present fair saleable value of the assets of Guarantor over the
amount of all liabilities of Guarantor, contingent or otherwise and (c) the
maximum amount for which this Guaranty is determined to be enforceable.
18. Reinstatement. This Guaranty shall remain in full force and effect
and continue to be effective in the event any petition be filed by or against
Borrower or Guarantor for liquidation or reorganization, in the event Borrower
or Guarantor becomes insolvent or makes an assignment for the benefit of
creditors or in the event a receiver or trustee be appointed for all or any
significant part of Borrower's or Guarantor's assets, and shall continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Guaranteed Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
FORM OF GUARANTY 8
<PAGE>
returned by the Administrative Agent or the Banks, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Guaranteed Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
19. Counterpart Execution. This Guaranty may be signed upon any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Guaranty
shall become effective as to Guarantor when a counterpart hereof shall have been
signed by Guarantor.
20. GOVERNING LAW; CONSENT TO JURISDICTION. (A) THIS GUARANTY AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF OHIO (WITHOUT GIVING EFFECT TO
THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY AND
ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN
THE COURTS OF THE STATE OF OHIO OR OF THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF OHIO, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE HAND DELIVERY, OR MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH IN
SECTION 11 HEREOF. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY BANK OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE GUARANTOR IN ANY OTHER JURISDICTION.
FORM OF GUARANTY 9
<PAGE>
21. WAIVER OF JURY TRIAL. GUARANTOR, THE ADMINISTRATIVE AGENT, AND EACH
OF THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered as of the day and year first above written.
UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:__________________________________
Name:_____________________________
Title:____________________________
FORM OF GUARANTY 10
<PAGE>
EXHIBIT H
SOLVENCY CERTIFICATE
This Certificate is made and delivered to KeyBank National Association,
in connection with (a) the Credit Agreement dated as of May ___, 2000 (the
"Credit Agreement") among Uni-Invest (U.S.A.) Partnership, L.P., a Delaware
limited partnership, as Borrower ("Borrower"), the Banks from time to time party
thereto (the "Banks"), KeyBank National Association, as the Administrative Agent
for itself and the other Banks, and (b) the Notes and all other agreements,
documents and instruments executed and delivered pursuant to such Credit
Agreement by the Borrower (collectively, the "Loan Documents," and the Loan
Documents, all Loans thereunder and all other transactions contemplated pursuant
thereto collectively referred to as the "Transactions"). Except as otherwise
expressly provided herein, terms used but not defined herein shall have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to the Credit Agreement, and acting solely in my capacity as
an officer of Borrower and not in my individual capacity, I hereby certify to
the Administrative Agent and the Banks as follows:
1. I am the duly elected, qualified and acting chief financial officer
of Borrower, and I have been responsible for acting on behalf of the Borrower in
connection with the negotiation and consummation of the Loan Documents. In
connection with these negotiations, I have been responsible for, among other
things, reviewing the affairs of the Borrower.
2. I have further, for purposes hereof, reviewed the assets and
liabilities of the Borrower. In particular:
A. I have reviewed the financial statements referred to in
Section 6.1 of the Credit Agreement.
B. With respect to contingent and off-balance sheet
liabilities included in the liabilities of the Borrower, I have
consulted with the appropriate officers and employees of the Borrower
and outside counsel of the Borrower concerning pending and threatened
litigation and other contingent liabilities of the Borrower.
On the basis of the review and analysis described above, I have
concluded that, after giving effect to the Transactions:
I. (a) (i) the fair value of the assets of the Borrower, on a
consolidated basis, at a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of the Borrower, on a consolidated basis;
(ii) the Borrower and its Subsidiaries on a consolidated basis will be able to
pay their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (iii) the Borrower and
its Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
FORM OF SOLVENCY CERTIFICATE 1
<PAGE>
(b) Borrower does not intend to, or to permit any of its Subsidiaries
to, and does not believe that it or any of its Subsidiaries will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing of and amounts of cash to be received by it or any such Subsidiary and
the timing of the amounts of cash to be payable on or in respect of its Debt or
the Debt of any such Subsidiary.
II. To the best of my knowledge, Borrower has not executed any Loan
Document or any documents mentioned therein or made any transfer or incurred any
obligation thereunder or in connection therewith with actual intent to hinder,
defraud or delay either present or future creditors.
EXECUTED AND DELIVERED ON May ___, 2000.
UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:_________________________________
Name:____________________________
Title:___________________________
FORM OF SOLVENCY CERTIFICATE 2
<PAGE>
EXHIBIT I
SUBSIDIARY GUARANTY AGREEMENT
THIS SUBSIDIARY GUARANTY AGREEMENT, dated as of May ___, 2000 (this
"Guaranty"), is made by ________________________, a _________________ limited
liability company and _____________, a ____________ limited liability company
(the foregoing are hereinafter sometimes referred to individually as a
"Guarantor" and collectively as the "Guarantors"), in favor of KeyBank National
Association, a national banking association ("KeyBank" or "Administrative
Agent"), as Administrative Agent, for the benefit of the Banks under the Credit
Agreement (as defined below).
R E C I T A L S:
A. KeyBank, in its capacity as a Bank and in its capacity as the
Administrative Agent for the Banks, Uni-Invest (U.S.A.) Partnership, L.P., a
Delaware limited partnership, ("Borrower"), and the Banks party thereto entered
into that certain Credit Agreement (Secured Acquisition Loan and Revolving Line
of Credit) dated as of May ___, 2000 (as the same may from time to time be
amended, modified, restated, extended or substituted, the "Credit Agreement").
B. As a condition to the effectiveness of the obligations of the Banks
under the Credit Agreement, each Guarantor is required to guarantee, among other
things, the Obligations of Borrower under the Operative Documents.
C. Each Guarantor has reviewed the Credit Agreement, the Notes, and all
other documents, agreements, instruments and certificates furnished by or on
behalf of Borrower in connection therewith (all of the foregoing, as amended or
modified from time to time and together with any agreements or instruments in
replacement thereof, being herein collectively referred to as the "Operative
Documents"), and each Guarantor has determined that it is in its interest and to
its financial benefit that the parties to the Operative Documents enter into the
transactions contemplated thereby.
For valuable consideration, the receipt of which is hereby acknowledged
and as further consideration, and as an inducement to the Banks to maintain the
credit facilities established by the Operative Documents, each Guarantor agrees
with the Administrative Agent for the benefit of the Banks as follows:
1. Guarantee of Obligations. (a) Each Guarantor hereby (i) guarantees,
as principal obligor and not as surety only, to the Administrative Agent and the
Banks the prompt payment of the principal of and any and all accrued and unpaid
interest (including interest which otherwise may cease to accrue by operation of
any insolvency law, rule, regulation or interpretation thereof) on the Loans and
all other obligations of Borrower to the Administrative Agent and the Banks
under the Credit Agreement when due, whether by scheduled maturity, acceleration
or otherwise, all in accordance with the terms of the Credit Agreement and the
Notes, including, without limitation, default interest, all reimbursement
obligations under any letters of credit, indemnification payments and all
reasonable costs and expenses incurred by the Administrative Agent in connection
with enforcing any obligations of Borrower hereunder, including without
FORM OF SUBSIDIARY 1
GUARANTY AGREEMENT
<PAGE>
limitation the reasonable fees and disbursements of counsel, (ii) guarantees the
prompt and punctual performance and observance of each and every term, covenant
or agreement contained in any Operative Document to be performed or observed on
the part of Borrower, (iii) guarantees the prompt and complete payment of all
obligations and performance of all covenants of Borrower under any interest rate
or currency swap agreements or similar transactions with the Administrative
Agent or any Bank entered into pursuant to or in connection with the Credit
Agreement, and (iv) agrees to make prompt payment, on demand, of any and all
reasonable costs and expenses incurred by the Administrative Agent in connection
with enforcing the obligations of any Guarantor hereunder, including, without
limitation, the reasonable fees and disbursements of counsel (all of the
foregoing being collectively referred to as the "Guaranteed Obligations").
(b) If for any reason any duty, agreement or obligation of Borrower
contained in any Operative Document shall not be performed or observed by
Borrower as provided therein, or if any amount payable under or in connection
with any Operative Document shall not be paid in full when the same becomes due
and payable, each Guarantor undertakes, but without duplication, to perform or
cause to be performed promptly, each of such duties, agreements and obligations
and to pay forthwith each such amount regardless of any defense or setoff or
counterclaim which Borrower may have or assert, and regardless of any other
condition or contingency.
2. Nature of Guaranty. This Guaranty is an absolute and unconditional
and irrevocable guaranty of payment and not a guaranty of collection and is
wholly independent of and in addition to other rights and remedies of the
Administrative Agent and is not contingent upon the pursuit by the
Administrative Agent of any such rights and remedies, such pursuit being hereby
waived by each Guarantor.
3. Waivers and Other Agreements. Each Guarantor hereby unconditionally
(a) waives any requirement that the Administrative Agent, upon the occurrence of
an Event of Default first make demand upon, or seek to enforce remedies against
Borrower or any other Guarantor or any other party now or hereafter liable,
whether as Guarantor or otherwise, for any of the Guaranteed Obligations, before
demanding payment under or seeking to enforce this Guaranty, (b) covenants that
this Guaranty will not be discharged except by complete performance of all
obligations of Borrower contained in the Operative Documents, (c) agrees that
this Guaranty shall remain in full force and effect without regard to, and shall
not be affected or impaired, without limitation, by any invalidity, irregularity
or unenforceability in whole or in part of any of the Operative Documents, or
any limitation on the liability of Borrower thereunder (other than those
limitations expressly set forth in the other Loan Documents), or any limitation
on the method or terms of payment thereunder which may hereafter be caused or
imposed in any manner whatsoever (including, without limitation, usury laws),
(d) waives diligence, presentment and protest with respect to, and any notice of
default or dishonor in the payment of, any amount at any time payable by
Borrower under or in connection with any of the Operative Documents, and further
waives notice of any of the matters referred to in paragraph 4 below, and
further waives all notices which may be required by statute, rule of law or
FORM OF SUBSIDIARY 2
GUARANTY AGREEMENT
<PAGE>
otherwise to preserve any rights of the Administrative Agent, including without
limitation any requirement of notice of acceptance of, or other formality
relating to this Guaranty to the extent permitted by applicable law and (e)
agrees that the Guaranteed Obligations shall include any amounts paid by
Borrower to the Administrative Agent which may be required to be returned to
Borrower or to a trustee, custodian or receiver for Borrower.
4. Obligations Absolute. The obligations, covenants, agreements and
duties of any Guarantor under this Guaranty shall not be released, affected or
impaired by any of the following whether or not undertaken with notice to or
consent of any Guarantor: (a) an assignment or transfer, in whole or in part, of
any of the Guaranteed Obligations or any of the Operative Documents although
made without notice to or consent of any Guarantor; (b) any waiver by the
Administrative Agent or by any other person, of the performance or observance by
Borrower of any of the agreements, covenants, terms or conditions contained in
any of the Operative Documents; (c) any indulgence in or the extension of the
time for payment by the Borrower of any amounts payable under or in connection
with any of the Operative Documents, or of the time for performance by Borrower
of any other obligations under or arising out of any of the Operative Documents,
or the extension or renewal thereof; (d) the modification, amendment or waiver
(whether material or otherwise) of any duty, agreement or obligation of Borrower
set forth in any of the Operative Documents (the modification, amendment or
waiver from time to time of any of the Operative Documents to which Borrower is
a party being expressly authorized without further notice to or consent of any
Guarantor); (e) the voluntary or involuntary liquidation, sale or other
disposition of all or substantially all of the assets of Borrower or any
receivership, insolvency, bankruptcy, reorganization, or other similar
proceedings, affecting Borrower or any of its respective assets; (f) the merger
or consolidation of Borrower with or into any other person or any transfer or
other disposition of any shares of capital stock of Borrower by the holder
thereof; (g) the release or discharge of Borrower by operation of law from the
performance or observance of any agreement, covenant, term or condition
contained in any Operative Document; (h) the release of any security, if any,
for the obligations of Borrower under any of the Operative Documents, or the
impairment of or failure to perfect an interest in any such security; (i) any
exercise or non-exercise of any right, remedy, power or privilege in respect of
this Guaranty or any of the Operative Documents, including without limitation
the release, discharge, or variance of the liability of any Guarantor; or (j)
any other cause whether similar or dissimilar to the foregoing which would
release, affect or impair the obligations, covenants, agreements or duties of
any Guarantor hereunder.
5. Joint and Several Obligations. The obligations of Guarantors
hereunder shall be several and also joint each with all or with any one or more
of the other parties now or hereafter guaranteeing any of the Guaranteed
Obligations, and such obligations of Guarantors may be enforced against each
Guarantor separately or against any two or more jointly, or against some
separately and some jointly.
6. No Investigation by the Administrative Agent. Each Guarantor hereby
waives unconditionally any obligation which, in absence of such provision, the
Administrative Agent might otherwise have to investigate or to assure that there
has been compliance with the law of any jurisdiction with respect to the
Guaranteed Obligations recognizing that, to save both time and expense, each
Guarantor has requested that the Administrative Agent not undertake such
FORM OF SUBSIDIARY 3
GUARANTY AGREEMENT
<PAGE>
investigation. Each Guarantor hereby expressly confirms that the obligations of
such Guarantor hereunder shall remain in full force and effect without regard to
compliance or noncompliance with any such law and irrespective of any
investigation or knowledge of any of the Administrative Agent of any such law.
7. Indemnity. As a separate, additional and continuing obligation, each
Guarantor unconditionally and irrevocably undertakes and agrees with the
Administrative Agent that, should the Guaranteed Obligations not be recoverable
from any Guarantor under paragraph 1 hereof for any reason whatsoever
(including, without limitation, by reason of any provision of this Guaranty or
any Operative Document being or becoming void, unenforceable, or otherwise
invalid under any applicable law) then, notwithstanding any knowledge thereof by
any of the Administrative Agent at any time, each Guarantor as sole, original
and independent obligor, upon demand by the Administrative Agent, will make
payment to the Administrative Agent of the Guaranteed Obligations by way of a
full indemnity in such currency and otherwise in such manner as is provided in
this Guaranty and the Operative Documents.
8. Subordination. Each Guarantor agrees that any present or future
indebtedness, obligations or liabilities of Borrower to such Guarantor shall be
fully subordinate and junior in right and priority of payment to any present or
future indebtedness, obligations or liabilities of Borrower to the
Administrative Agent. Each Guarantor waives any right of subrogation to the
rights of any Guarantor against Borrower or any other person obligated for
payment of the Guaranteed Obligations and any right of reimbursement or
indemnity whatsoever arising or accruing out of any payment which such Guarantor
may make pursuant to this Guaranty and the Notes, and any right of recourse to
security for the debts and obligations of Borrower, unless and until the entire
principal balance of and interest on the Guaranteed Obligations shall have been
paid in full.
9. Representations, Warranties and Covenants. (a) Each Guarantor
represents and warrants that: (i) the execution, delivery and performance by
such Guarantor of this Guaranty are within its corporate powers, have been duty
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, and do not contravene, or constitute
a default under, any provision of applicable law or regulation or of the
articles of incorporation or other charter documents or bylaws of such
Guarantor, or of any agreement, judgment, injunction, order, decree or other
instrument binding upon such Guarantor or its property; (ii) this Guaranty
constitutes a legal, valid and binding obligation of such Guarantor, enforceable
against such Guarantor in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights and except that
the remedy of specific performance and injunctive and other forms of equitable
relief are subject to equitable defenses and to the discretion of the court for
which any proceedings may be brought; and (iii) as of the date hereof, each of
the following is true and correct for such Guarantor: (A) the fair saleable
value and the fair valuation of such Guarantor's property is greater than the
total amount of its liabilities (excluding contingent liabilities) and greater
than the amount that would be required to pay its probable aggregate liability
on its existing debts as they become absolute and matured, (B) such Guarantor's
capital is not unreasonably small in relation to its current and/or contemplated
business or other undertaken transactions, and (C) such Guarantor does not
intend to incur, or believe that it will incur, debt beyond its ability to pay
such debts as they become due.
FORM OF SUBSIDIARY 4
GUARANTY AGREEMENT
<PAGE>
(b) Each Guarantor covenants and agrees that: (i) it will not directly
or indirectly create, incur, assume or permit to exist any Lien on or with
respect to any Property acquired in whole or in part with the proceeds of any
Loan except as permitted by the Credit Agreement; (ii) it will not convey, sell,
transfer, assign, pledge or otherwise dispose of all or any portion of its
assets to the extent the value of such assets either individually or in the
aggregate exceeds five percent (5%) of the Total Asset Value of all assets of
such Guarantor, unless permitted by the Credit Agreement; and (iii) it will not
directly or indirectly create, incur, assume or permit to exist any Debt, except
as permitted by the Credit Agreement.
10. Remedies. (a) Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent, on behalf of the Banks, may, in
addition to the remedies provided in the Operative Documents, enforce its rights
either by suit in equity, or by action at law, or by other appropriate
proceedings, whether for the specific performance (to the extent permitted by
law) of any covenant or agreement contained in this Guaranty or in aid of the
exercise of any power granted in this Guaranty and may enforce payment under
this Guaranty and any of its other rights available at law or in equity.
(b) In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuance of any Event of Default, each Bank is
hereby authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Guarantor or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final), other than deposits held for payroll or the benefit of third parties,
and any other indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of the Guarantor against and on account of the
Guaranteed Obligations then due and payable to such Bank under this Agreement or
under any of the other Loan Documents executed by any Guarantor, including,
without limitation, all interests in Guaranteed Obligations purchased by such
Bank. Each Bank agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Note held by it, which
is greater than the proportion received by any other Bank in respect of the
aggregate amount of principal and interest due with respect to any Note held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other Banks, and such
other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this paragraph shall
impair the right of any Bank to exercise any right of set-off or counterclaim it
may have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes. Each
Guarantor agrees, to the fullest extent that it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of such Guarantor in
the amount of such participation.
FORM OF SUBSIDIARY 5
GUARANTY AGREEMENT
<PAGE>
(c) To the extent that it lawfully may, each Guarantor agrees that it
shall not apply for or avail itself of any appraisement, valuation, stay,
extension or exemption laws, or any so-called "moratorium laws," now existing or
hereafter enacted, in order to prevent or hinder the enforcement of this
Guaranty, or any of the Operative Documents, but hereby waives the benefit of
such laws. Each Guarantor, for itself and all who may claim through or under it
waives any and all right to have the property or estates securing its
obligations under this Guaranty or the Operative Documents marshaled upon any
foreclosure of the lien hereof and agrees that any court having jurisdiction to
foreclose such lien may order such property sold as an entirety. To the fullest
extent permitted by law, each Guarantor hereby waives any and all rights of
redemption from sale under any order or decree of foreclosure of the instruments
securing its obligations under this Guaranty or Operative Documents, except
decree or judgment of creditors of any Guarantor, acquiring any interest in or
title to the property or estates securing its obligations under this Guaranty or
the Operative Documents subsequent to the date of such instruments.
11. Amendments, Etc. This Guaranty may be amended from time to time and
any provision hereof may be waived in accordance with the requirements of
Section 13.5 of the Credit Agreement. No such amendment or waiver of any
provision of this Guaranty nor consent to any departure by any Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
12. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including Bank wire, facsimile transmission
or similar writing) and shall be given to such party at the following addresses:
To KeyBank: With a copy to:
KeyBank National Association Linda A. Striefsky, Esq.
127 Public Square Thompson Hine & Flory LLP
Cleveland, OH 44114 3900 Key Center, 127 Public Square
Attention: Peter Kurz Cleveland, OH 44114
Phone: (216) 689-0340 Phone: (216) 566-5733
Facsimile: (216) 689-3566 Facsimile: (216) 566-5800
FORM OF SUBSIDIARY 6
GUARANTY AGREEMENT
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
To Guarantor 1: With a copy to:
Attention:______________ Attention:___________________
Phone: ( )___________ Phone:_______________________
Facsimile: ( )_______ Facsimile:___________________
To Guarantor 2: With a copy to:
Attention:_______________ Attention:___________________
Phone: ( )____________ Phone:_______________________
Facsimile: ( )________ Facsimile:___________________
To Borrower: With a copy to:
Uni-Invest (U.S.A.) Partnership, L.P. Uni-Invest (U.S.A.), Ltd.
44 South Bayles Avenue 44 South Bayles Avenue
Port Washington, NY 11050 Port Washington, NY 11050
Attention: Mr. Leo S. Ullman Attention: Stuart Widowski, Esq.
Phone: (516) 767-6492 Phone: (516) 767-6492
Facsimile: (516) 767-6497 Facsimile: (516) 767-6497
</TABLE>
Each such notice, request or other communication shall be effective (i) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section, (ii) if given by mail, the notice, request or other
communication shall be sent via certified mail, return receipt requested and
shall be effective three (3) days after delivery or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Administrative Agent shall not be effective until received.
13. Conduct No Waiver; Remedies Cumulative. The obligations of each
Guarantor under this Guaranty are continuing obligations and a separate and
independent cause of action shall arise in respect of each enforcement hereunder
and default hereunder or under the Credit Agreement. No course of dealing on the
part of the Administrative Agent or any Bank, nor any delay or failure on the
part of the Administrative Agent in exercising any right, power or privilege
hereunder shall operate as a waiver of such right, power or privilege or
otherwise prejudice the rights and remedies of the Administrative Agent
hereunder, nor shall any single or partial exercise thereof preclude any further
exercise thereof or the exercise of any other right, power or privilege. No
right or remedy conferred upon or reserved to the Administrative Agent under
this Guaranty is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to every other right
or remedy given hereunder or now or hereafter existing under any applicable law.
Every right and remedy given by this Guaranty or by applicable law to the
Administrative Agent may be exercised from time to time and as often as may be
deemed expedient by it.
FORM OF SUBSIDIARY 7
GUARANTY AGREEMENT
<PAGE>
14. Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of each Guarantor made
herein or in any certificate or other document delivered pursuant hereto shall
be deemed to be material and to have been relied upon by the Administrative
Agent, notwithstanding any investigation heretofore or hereafter made by the
Administrative Agent or on its behalf.
15. Successors and Assigns. The rights and remedies of the
Administrative Agent hereunder shall inure to the benefit of the Administrative
Agent and its respective successors and assigns, and the duties and obligations
of each Guarantor hereunder shall be binding upon such Guarantor and its
successors and assigns.
16. Survival of the Administrative Agent's Rights and Remedies.
Notwithstanding any provision of this Guaranty to the contrary, the execution
and delivery by Guarantors of this Guaranty, and the Administrative Agent's
acceptance thereof, shall not be deemed to (a) be a consent to any action,
whether heretofore or hereafter taken, by Borrower in violation of any provision
of any Operative Document, (b) be a waiver of any provision of any Operative
Document or (c) prejudice any rights or remedies which the Administrative Agent
may now have or have in the future under or in connection with any Operative
Document, including without limitation any such rights or remedies with respect
to any event of default or event causing or permitting acceleration under any
Operative Document which may heretofore have occurred and be continuing or may
hereafter occur.
17. Definitions; Headings. Terms used but not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement. The headings
of the various subdivisions hereof are for convenience of reference only and
shall in no way modify any of the terms or provisions hereof.
18. Integration; Severability; Enforceability. This Guaranty embodies
the entire agreement and understanding among Guarantors and the Administrative
Agent, and supersedes all prior agreements and understandings, relating to the
subject matter hereof. If any one or more provisions of this Guaranty should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected, impaired, prejudiced or disturbed thereby. If at any time any
portion of the obligations of any Guarantor under this Guaranty shall be
determined by a court of competent jurisdiction to be invalid, unenforceable or
avoidable, the remaining portion of the obligations of such Guarantor and each
other Guarantor under this Guaranty shall not in any way be affected, impaired,
prejudiced or disturbed thereby and shall remain valid and enforceable to the
fullest extent permitted by applicable law. If at any time all or any portion of
the obligations of any Guarantor under this Guaranty would otherwise be
determined by a court of competent jurisdiction to be invalid, unenforceable or
avoidable under Section 548 of the Federal Bankruptcy Code or under a similar
applicable law of any jurisdiction, then notwithstanding any other provisions of
this Guaranty to the contrary such obligation or portion thereof of such
Guarantor under this Guaranty shall be limited to the greatest of (a) the value
FORM OF SUBSIDIARY 8
GUARANTY AGREEMENT
<PAGE>
of any quantifiable economic benefits accruing to such Guarantor as a result of
this Guaranty, (b) an amount equal to ninety-five percent (95%) of the excess on
the date the relevant Guaranteed Obligations were incurred of the present fair
saleable value of the assets of such Guarantor over the amount of all
liabilities of such Guarantor, contingent or otherwise and (c) the maximum
amount for which this Guaranty is determined to be enforceable.
19. Reinstatement. This Guaranty shall remain in full force and effect
and continue to be effective in the event any petition be filed by or against
Borrower or any Guarantor for liquidation or reorganization, in the event
Borrower or any Guarantor becomes insolvent or makes an assignment for the
benefit of creditors or in the event a receiver or trustee be appointed for all
or any significant part of Borrower's or any Guarantor's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Guaranteed Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by the Administrative Agent or the Banks, whether as a
"voidable preference", "fraudulent conveyance", or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Guaranteed
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
20. Counterpart Execution. This Guaranty may be signed upon any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Guaranty
shall become effective as to each Guarantor when a counterpart hereof shall have
been signed by such Guarantor.
21. GOVERNING LAW; CONSENT TO JURISDICTION. (A) THIS GUARANTY AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF OHIO (WITHOUT GIVING EFFECT TO
THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY AND
ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN
THE COURTS OF THE STATE OF OHIO OR OF THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF OHIO, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH GUARANTOR IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE HAND DELIVERY, OR MAILING OF COPIES THEREOF
BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS
SET FORTH IN SECTION 12 HEREOF. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
FORM OF SUBSIDIARY 9
GUARANTY AGREEMENT
<PAGE>
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY BANK OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST SUCH GUARANTOR IN ANY OTHER JURISDICTION.
22. WAIVER OF JURY TRIAL. EACH GUARANTOR, THE ADMINISTRATIVE AGENT, AND
EACH OF THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered as of the day and year first above written.
______________________________________
By:___________________________________
Its:__________________________________
FORM OF SUBSIDIARY 10
GUARANTY AGREEMENT
<PAGE>
EXHIBIT J
FORM OF ASSIGNMENT AND ASSUMPTION
AGREEMENT dated as of May ___, 2000 among [ASSIGNOR] (the "Assignor"),
[ASSIGNEE] (the "Assignee"), UNI-INVEST (U.S.A.) PARTNERSHIP, L.P., a Delaware
limited partnership (the "Borrower") and KEYBANK NATIONAL ASSOCIATION, as
Administrative Agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, this Assignment and Assumption Agreement (the "Assignment")
relates to the Credit Agreement dated as of May ___, 2000 (the "Loan Agreement")
among the Borrower, the Assignor and the other Banks party thereto, as Banks.
WHEREAS, as provided under the Loan Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $10,000,000.00;
WHEREAS, Loans made to the Borrower by the Assignor under the Loan
Agreement in the aggregate principal amount of $______________ are outstanding
at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Loan Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $______________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Loan Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Loan Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Loan Agreement to the extent of the Assigned Amount, including the purchase from
the Assignor of the corresponding portion of the principal amount of the Loans
made by the Assignor outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, the Borrower and the
Administrative Agent and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Bank under the Loan Agreement with a Commitment in an amount equal to the
FORM OF ASSIGNMENT 1
AND ASSUMPTION
<PAGE>
Assigned Amount, and (ii) the Commitment of the Assignor shall as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Loan Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.(1) It is
understood that Unused Commitment Fees and Extension Fees accrued to the date
hereof are for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under the
Loan Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent Banks. This Agreement
is conditioned upon the written consent of the Borrower and the consent of the
Administrative Agent pursuant to Section 13.6 of the Loan Agreement. The
execution of this Agreement by the Borrower and the Agent Banks is evidence of
the required consents. Pursuant to Section 13.6(c) of the Credit Agreement, the
Borrower agrees to execute and deliver, if required, a new Note payable to the
order of the Assignee to evidence the assignment and assumption provided for
herein, and the Administrative Agent agrees to cause any replaced Note to be
surrendered to the Borrower.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Loan Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAWS OF THE STATE OF OHIO (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
- --------
(1) The amount should combine principal together with accrued interest
and breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
FORM OF ASSIGNMENT 2
AND ASSUMPTION
<PAGE>
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By:______________________________________
Name:_________________________________
Title:________________________________
[ASSIGNEE]
By:______________________________________
Name:_________________________________
Title:________________________________
KEYBANK NATIONAL ASSOCIATION, as
Administrative Agent
By:______________________________________
Name:_________________________________
Title:________________________________
FORM OF ASSIGNMENT 3
AND ASSUMPTION
<PAGE>
Schedule 2.4(f)
Employees Authorized to Execute Notice of Borrowing
Leo S. Ullman Chairman of the Board and Chief Executive Officer
Leo S. Ullman President
Brenda J. Walker Vice President
1
<PAGE>
Schedule 3.4(a)(ix)
ESTOPPEL CERTIFICATE AND AGREEMENT OF SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT
THIS ESTOPPEL CERTIFICATE AND AGREEMENT OF SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT ("Agreement") is made by and among
______________________, a(n) _______________________________ ("Lessee"),
Uni-Invest (U.S.A.) Partnership, L.P., a Delaware limited partnership ("Lessor")
and KEYBANK NATIONAL ASSOCIATION, a national banking association ("KeyBank"), as
a Bank and Administrative Agent for the Banks under the Credit Agreement (as
hereinafter defined). All capitalized terms used herein that are not defined
herein shall have the meaning ascribed to such terms in the Credit Agreement
unless the context requires otherwise.
W I T N E S S E T H:
WHEREAS, KeyBank, in its capacity as a Bank and in its capacity as the
Administrative Agent for the Banks and Lessor, as Borrower ("Borrower") entered
into that certain Credit Agreement (Secured Acquisition Loan and Revolving Line
of Credit) dated as of May ___, 2000 (as the same may from time to time be
amended, modified, restated, extended or substituted, the "Credit Agreement");
WHEREAS, the Credit Agreement obligates the Banks to make Loans to
Borrower in principal amounts not to exceed Ten Million and 00/100 Dollars
($10,000,000.00) in the aggregate, such Loans being evidenced by the Notes from
the Borrower, dated of even date herewith, (collectively, as the same may from
time to time be renewed, amended, modified, restated, supplemented, extended or
substituted, the "Notes");
WHEREAS, the Notes are secured by, among other things, a Mortgage [Deed
of Trust], Security Agreement and Fixture Filing dated _______________, recorded
with the ______________ County, _____________ Recorder's Office (the "Recording
Office") as Document No. ________________ (the "Mortgage") and an Assignment of
Leases, Rents and Security Deposits dated _______________, recorded at the
Recording Office as Document No. ________________ (the "Assignment") each
granted by Lessor, in favor of KeyBank, as Administrative Agent for the Banks;
WHEREAS, Lessee has entered into that certain Lease with Lessor dated
as of ________________, ________, a copy of which is attached hereto, (as the
same may hereafter be amended or supplemented with the Bank's consent, the
"Lease"), pursuant to which Lessor did lease, let, and demise the real property
or portion of real property described on Exhibit A attached hereto and made a
part hereof all as more particularly described in the Lease (the "Premises");
1
<PAGE>
WHEREAS, Lessee acknowledges and agrees to the Assignment, and more
particularly, the covenants and agreements of Lessor set forth therein; and
WHEREAS, the parties hereto desire to establish additional rights of
quiet and peaceful possession for the benefit of Lessee, and further to define
the covenants, terms, and conditions precedent to such additional rights.
NOW, THEREFORE, in consideration of the covenants, terms, conditions,
agreements, and demises herein contained, and in consideration of other good and
valuable consideration, each to the other, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto agree, covenant, and warrant as
follows:
1. Subordination of Lease. The Lease is and shall be subject and
subordinate to the Mortgage and the Assignment, and to all renewals,
modifications, consolidations, replacements, and extensions of either.
2. Non-Disturbance of Lessee. Subject to the observance and performance
by Lessee of all of the covenants, terms and conditions of the Lease, KeyBank
hereby covenants that in the event KeyBank obtains title to the Premises, either
by foreclosure or by deed in lieu of foreclosure, and thereafter obtains the
right of possession of the Premises, that the Lease will continue in full force
and effect, and KeyBank shall recognize the Lease and the Lessee's rights
thereunder.
3. Attornment. Lessee shall attorn to (a) KeyBank when in possession of
the Premises; (b) a receiver appointed in an action or proceeding to foreclose
the Mortgage; or (c) to any party acquiring title to the Premises, and shall
execute and deliver upon request an appropriate agreement of attornment
thereunder. Lessee waives all joinder and/or service of any and all foreclosure
actions by KeyBank under the Notes and Mortgage and of any actions of law by
KeyBank to gain possession of the Premises. It shall not be necessary, except as
required by law, for KeyBank to name Lessee as a party to enforce its rights
under the Notes or Mortgage, or any other Loan Document collateralizing the
Loans, or to prosecute any action at law to gain possession of the Premises,
and, unless required by law, KeyBank agrees not to name Lessee in any such
proceeding.
4. No Merger of Estates. In the event Lessee acquires any title or
interest in the Premises subject to the Lease, there shall be no merger of the
estates of the Lessor and Lessee, and the Lease and Lessee's obligations
thereunder shall continue in full force and effect.
5. Notice of Defaults/Termination; Right of Lessee to Cure. Lessee
agrees to give KeyBank by registered or certified mail, return receipt requested
as provided in Section 8 hereof, (a) a copy of any notice of default served upon
Lessor, (b) notice of any acts or matters on which Lessee may claim or predicate
a default by Lessor under the Lease or (c) notice of any termination or proposed
termination of the Lease. In the case of any notice of default, such notice of
default shall specify the nature and extent of all defaults then existing. No
2
<PAGE>
notice of the matters described in this Section 5 given by Lessee to the Lessor
shall be legally effective unless a copy of such notice shall have been given by
Lessee as required in the preceding sentence to KeyBank. Lessee further agrees
that if Lessor shall have failed to cure any default within the time period
provided for in the Lease, then KeyBank shall have the right, but not the
obligation, to perform any term, covenant, condition or agreement and to cure
such default as set forth in the Lease (and Lessee shall accept such performance
by KeyBank with the same force and effect as if performed by Lessor), within (x)
in the case of a monetary default, the five (5)-day period following the
expiration of Lessor's grace period applicable to the default as provided in the
Lease, or (y) in the case of a non-monetary default, the thirty (30)-day period
following the expiration of the Lessor's grace period applicable to such default
as provided in the Lease, provided, however, if such default cannot be cured
within such thirty (30)-day period then KeyBank shall have such additional time
as may be necessary if, within such thirty (30)-day period, KeyBank has
commenced and are diligently pursuing the remedies necessary to cure such
default, in which event the Lease shall not be terminated while such remedies
are being so diligently pursued.
6. Modification of Lease. Lessee hereby covenants and agrees that
Lessee shall not, without the express written consent of KeyBank in its sole
discretion, (a) amend, modify or waive the provisions of the Lease, in any
material respect, or (b) reduce the rents under, or shorten the term of, the
Lease.
7. Certifications of Lessee. Lessee hereby certifies and represents to
KeyBank:
(a) that the Lease attached to this Agreement has not been
modified, changed, altered or amended in any respect and is the only
and entire lease or agreement between the Lessee and the Lessor
affecting the Premises; and that the Lease is valid and in full force
and effect;
(b) that the Lessee is in possession of the Premises leased
under the Lease; that all improvements required to be constructed by
Lessor under the Lease are complete and have been accepted by Lessee;
(c) that the commencement date of the Lease was
______________________, _____ and the expiration date is
---------------------, ---;
(d) that neither Lessee nor Lessor is currently in default
under the Lease, nor has any event occurred that will constitute a
default after notice and/or the lapse of any applicable grace period,
and that Lessee has no charge, lien or claim of offset under the Lease
or otherwise against rents or other charges due or to become due
thereunder;
(e) that the current rent due under the Lease is
______________ and date of last payment ________________________ was
_____________________; and that no rent has been paid more than thirty
(30) days in advance;
3
<PAGE>
(f) that Lessee has made no agreements with Lessor its agents
or employees concerning free rent, partial, rent, rebate or rental
payments or any other type of rental concession other than as set forth
in the Lease; that Lessee's interest in the Lease has not been assigned
and the Premises have not been sublet; and
(g) that there is no action, suit or proceeding pending
against Lessee which questions the validity of the Lease or which would
adversely affect Lessee's ability to perform its obligations under the
Lease; and that no actions, whether voluntary or otherwise, are pending
against Lessee under the bankruptcy laws of the United States or any
state thereof.
8. Notices. Any notices hereunder shall be effective upon mailing by
certified mail, return receipt requested, addressed as follows:
<TABLE>
<CAPTION>
<S> <C>
To KeyBank: With a copy to:
KeyBank National Association Linda A. Striefsky, Esq.
127 Public Square Thompson Hine & Flory LLP
Cleveland, OH 44114 3900 Key Center, 127 Public Square
Attention: Peter Kurz Cleveland, OH 44114
Phone: (216) 689-0340 Phone: (216) 566-5733
Facsimile: (216) 689-3566 Facsimile: (216) 566-5800
To Lessee: With a copy to:
Attention: _____________________ Attention:__________________________
Phone:__________________________ Phone: ( )_______________________
Facsimile: ( ) ______________ Facsimile: ( )___________________
To Lessor: With a copy to:
Uni-Invest (U.S.A.) Partnership, L.P. Uni-Invest (U.S.A.), Ltd.
44 South Bayles Avenue 44 South Bayles Avenue
Port Washington, NY 11050 Port Washington, NY 11050
Attention: Mr. Leo S. Ullman Attention: Stuart Widowski, Esq.
Phone: (516) 767-6492 Phone: (516) 767-6492
Facsimile: (516) 767-6497 Facsimile: (516) 767-6497
</TABLE>
or as to each party, to such other address as the party may designate by a
notice given in accordance with the requirements contained in this Section 8.
4
<PAGE>
9. Miscellaneous. (a) This Agreement contains the entire agreement
between the parties hereto. No variations, modifications or changes herein or
hereof shall be binding upon any party hereto unless set forth in a document
duly executed by or on behalf of such party.
(b) This instrument may be executed in multiple counterparts, all of
which shall be deemed originals and with the same effect as if all parties
hereto had signed the same document. All of such counterparts shall be construed
together and shall constitute one instrument, but in making proof, it shall only
be necessary to produce one such counterpart.
(c) Whenever used herein, the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all genders.
The words, "KeyBank", "Banks", "Lessor" and "Lessee" shall include their
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed, sealed and delivered in their respective names and in their behalf; and,
if a corporation or other entity, by its officers or other parties duly
authorized, as of the date stated above.
<TABLE>
<CAPTION>
<S> <C>
LESSEE:
Witnessed by (as to both signatures): [INSERT LESSEE'S NAME]
By:________________________________
Print Name:__________________________
Name:___________________________ Title:_________________________
By:_______________________________
Print Name:_________________________
Name:__________________________ Title:________________________
LESSOR:
Witnessed by (as to both signatures): UNI-INVEST (U.S.A.) PARTNERSHIP L.P., a
Delaware limited partnership
By: Uni-Invest (U.S.A.), Ltd., a Maryland
corporation, its general partner
By:_____________________________________
Print Name:________________________________
Name: _________________________ Title:_______________________________
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
By:____________________________
Print Name:_______________________
Name:__________________________ Title:______________________
KEYBANK:
Witnessed by: KEYBANK NATIONAL ASSOCIATION
By:____________________________
Print Name:_____________________
Name:_________________________ Title:____________________
Print
Name:_________________________
</TABLE>
6
<PAGE>
STATE OF )
) SS.
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________________, its ____________________________ and
____________________________, its ____________________________ of [insert
Lessee's Name], a(n) _________________________________________________ , the
________________________________ which executed the foregoing instrument, who
acknowledged that they did sign said instrument as such officers of said
corporation for and on behalf of said corporation and that the same is their own
free act and deed individually, as such officers of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal at ____________________, ___________, this _____ day of
________________, 2000.
(SEAL) -------------------------
Notary Public
My commission expires:
7
<PAGE>
STATE OF )
) SS.
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________________, the ____________________________ and
____________________________, the ____________________________ of Uni-Invest
(U.S.A.), Ltd., a Maryland corporation, the general partner of Uni-Invest
(U.S.A.) Partnership, L.P., a Delaware limited partnership who acknowledged that
they did sign the within instrument on behalf of said corporation and limited
partnership.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal at ____________________, ___________, this _____ day of
________________, 2000.
(SEAL) -----------------------
Notary Public
My commission expires:
8
<PAGE>
STATE OF )
) SS.
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared ___________________________, the ____________________________ of
KeyBank National Association, a national banking association, the bank which
executed the foregoing instrument, who acknowledged that he/she did sign said
instrument as such officer of said bank for and on behalf of said bank and that
the same is his/her own free act and deed individually, as such officer of said
bank, and the free act and deed of said bank.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal at Cleveland, Ohio, this _____ day of ________________, 2000.
(SEAL) ------------------------------
Notary Public
My commission expires:
This instrument prepared by:
Linda A. Striefsky, Esq.
Thompson Hine & Flory LLP
3900 Key Center
127 Public Square
Cleveland, OH 44114
9
<PAGE>
Schedule 4.6(c)
List of Borrower's Benefit Plans
None
1
<PAGE>
Schedule 4.21
List of Borrower's Collective Bargaining Agreement/
Multi-Employer Plans
None
1
<PAGE>
Schedule 4.24
Names
Party Jurisdiction Names as Registered in Jurisdiction
None
1
<PAGE>
Schedule 4.28
Ownership Interests of Borrower
None
1
<PAGE>
Schedule 4.29
Direct and Indirect Ownership Interests in Borrower
Cedar Bay Company owns 1,703,300 limited partnership units in Borrower. The
balance of the units are owned by Uni-Invest (U.S.A.), Ltd. There are 2,645,411
limited partnership units outstanding as of May 9, 2000.
1
<PAGE>
Schedule 5.6(c)
List of REIT's Benefit Plans
None
1
<PAGE>
Schedule 5.7
Taxes
Under prior management, the REIT or its Consolidated Subsidiaries did
not make the tax filings listed below:
Party Jurisdiction Type of Filing Tax Period
REIT Utah State Tax Return 1984-1997
REIT Florida State Tax Return 1984-1997
REIT Kentucky State Tax Return 1984-1997
REIT Illinois State Tax Return 1984-1997
1
<PAGE>
Schedule 5.19
List of REIT's Collective Bargaining Agreements/
Multi-Employer Plans
None
1
<PAGE>
Schedule 5.22
REIT Names
<TABLE>
<CAPTION>
<S> <C> <C>
Party Jurisdiction Names as Registered in Jurisdiction
Uni-Invest (U.S.A.) Ltd. Utah Uni-Invest (U.S.A.), Ltd., Corp.
Uni-Invest (U.S.A.) Ltd. Florida Uni-Invest (U.S.A.), Ltd., Corp.
</TABLE>
[List each Consolidated Subsidiary]
1
<PAGE>
Schedule 5.24
Ownership Interests of REIT
General Partnership interests in Uni-Invest (U.S.A.) Partnership L.P.
1
<PAGE>
Schedule 5.25
Direct and Indirect Ownership Interests in REIT
Owning Entity Shares of Common Stock
Cedar Bay Company 189,737
Uni-Invest Holdings (U.S.A.) B.V. 150,000
Thomas Moekops 50,000
Harry van de Moesdijk 50,000
Rudolf Dick Bakhuizen 50,000
Martin P. Egli 25,000
Marcus Wintsch 25,000
Dirk van Riemsdijk 25,000
Jan Willem van Lanschot 25,000
Attached hereto is a copy of all the shareholders as of January 10,
2000.
[NOTE: AS A RESULT OF NEW SHARES TO BE ISSUED PURSUANT TO THE HOMBURG
SUBSCRIPTION AGREEMENT, 1,666,667 ADDITIONAL SHARES WILL BE ISSUED ON OR ABOUT
MAY 10, 2000.]
