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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A(1)
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 31, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Transition period from ____________________ to ______________________
Commission File Number 1-12386
LEXINGTON CORPORATE PROPERTIES, INC.
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(Exact name of registrant as specified in its charter)
Maryland 13-3717318
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
355 Lexington Avenue
New York, NY 10017
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(Address of principal executive offices) (Zip Code)
(212) 692-7260
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 of 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes_x_. No____.
Indicate the number of shares outstanding of each registrant's classes of common
stock, as of the latest practicable date: 9,441,716 shares of common stock, par
value $.0001 per share as of April 30, 1997.
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1 Notwithstanding such Amendment, information set forth herein speaks as of
and for the dates referred to in the Form 10-Q originally filed by the
Registrant. Reference is made to annual and current reports filed by the
Registrant since March 31, 1997, for information regarding the Registrant.
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PART II - OTHER INFORMATION
ITEM 1. Legal Proceedings - not applicable.
ITEM 2. Changes in Securities - not applicable.
ITEM 3. Defaults under the Senior Securities - not applicable.
ITEM 4. Submission of Matters to a Vote of Security Holders - not applicable.
ITEM 5. Other Information - not applicable.
ITEM 6. Exhibits and Reports on Form 8-K.
(a) Exhibits -
Exhibit No. Exhibit
11 Schedule of Computations of Per
Share Earnings*
10.36 Amended and Restated Revolving
Credit Agreement with Fleet
National Bank dated February 20,
1997 in the amount of $60,000,000
27 Financial Data Schedule*
(b) Reports on Form 8-K filed during the quarter ended
March 31, 1997.
Acquisition of five properties from three limited
partnerships through three exchange transactions dated
December 31, 1996 - filed January 15, 1997.*
Acquisition of five properties from three limited
partnerships through three exchange transactions dated
December 31, 1996 - filed January 15, 1997, and
Amendment No.1 thereto filed March 14, 1997.*
Announcement of the Company's intentions regarding legal
proceedings with Ross Stores, Inc. dated February 4,
1997 - Item 5 - Other Events - filed February 6, 1997.*
Sale of 700,000 shares of the Company's Class A Senior
Cumulative Convertible Preferred Stock (the "Preferred
Stock") pursuant to an Investment Agreement between the
Company and Five Arrows Realty Securities L.L.C. for the
sale of up to 2,000,000 shares of the Company's
Preferred Stock, dated January 21, 1997 - filed February
10, 1997.*
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* Incorporated by reference.
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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.
Lexington Corporate Properties, Inc.
Date: May 15, 1997 By: /s/ E. Robert Roskind
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E. Robert Roskind
Chairman and Co-Chief
Executive Officer
Date: May 15, 1997 By: /s/ Paul R. Wood
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Paul R. Wood
Vice President and Chief
Accounting Officer
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EXHIBIT INDEX
Exhibit No. Exhibit
11 Schedule of Computations of Per
Share Earnings*
10.36 Amended and Restated Revolving
Credit Agreement with Fleet
National Bank dated February 20,
1997 in the amount of $60,000,000
27 Financial Data Schedule*
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* Incorporated by reference.
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EXHIBIT 10.36
$60,000,000
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
between
LEXINGTON CORPORATE PROPERTIES, INC.,
LEPERCQ CORPORATE INCOME FUND, L.P.,
LEPERCQ CORPORATE INCOME FUND II L.P.,
UNION HILLS ASSOCIATES,
NORTH TAMPA ASSOCIATES, and
LEX GP-1, INC.,
JOINTLY AND SEVERALLY;
THE INSTITUTIONS FROM TIME TO TIME PARTY
HERETO AS LENDERS;
THE INSTITUTIONS FROM TIME TO TIME PARTY
HERETO AS ISSUING BANKS;
and
FLEET NATIONAL BANK, as Administrative Agent
Dated as of February 20, 1997
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TABLE OF CONTENTS
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SECTION PAGE
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SECTION 1. DEFINITIONS ................................................................ 2
1.1. Defined Terms .............................................................. 2
1.2. Computation of Time Periods ................................................ 2
1.3 Accounting Terms ........................................................... 2
1.4 Other Terms ................................................................ 2
SECTION 2. AMOUNT AND TERMS OF LOANS .................................................. 2
2.1. Revolving Credit Facility .................................................. 2
2.2. Promise to Repay; Evidence of Indebtedness ................................. 2
2.3. Procedure for Borrowing Under the Revolving Credit Facility ................ 7
2.4. Interest on the Loans and other Obligations ................................ 8
2.5. Duration and Determination of Interest Period; Determination of
Interest Rate; Continuation/Conversion of Loans ............................ 10
2.6. Optional Prepayments; Mandatory Prepayments ................................ 12
2.7. Computation of Interest and Fees ........................................... 13
2.8. Payments ................................................................... 13
2.9. Use of Proceeds and Letters of Credit ...................................... 17
2.10. Increased Costs ............................................................ 18
2.11. Change in Law Rendering Eurodollar Loans Unlawful .......................... 19
2.12. Eurodollar Availability .................................................... 19
2.13. Indemnities ................................................................ 20
2.14. Fees ....................................................................... 21
2.15. Usury ...................................................................... 22
2.16. Eligible Properties ........................................................ 22
2.17. Substitution and Release of Property ....................................... 26
SECTION 3. LETTERS OF CREDIT .......................................................... 27
3.1. Letters of Credit .......................................................... 27
SECTION 4. REPRESENTATIONS AND WARRANTIES ............................................. 32
4.1. Financial Condition ........................................................ 32
4.2. No Material Adverse Effect ................................................. 33
4.3 Existence; Borrower's Compliance with Law .................................. 33
4.4. Power; Authorization; Enforceable Obligations .............................. 33
4.5. No Legal Bar ............................................................... 33
4.6 No Material Litigation ..................................................... 33
4.7. No Default ................................................................. 34
4.8. Ownership of Property; Liens ............................................... 34
4.9. Taxes ...................................................................... 36
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4.10. Federal Regulations ........................................................ 36
4.11. ERISA ...................................................................... 36
4.12. Status of REIT ............................................................. 37
4.13. Investment Company Act ..................................................... 37
4.14. Subsidiaries; Ownership of Capital Stock and Partnership Interests ......... 37
4.15. Absence of Financing Statements, etc. ...................................... 38
4.16. Pollution; Hazardous Materials ............................................. 38
4.17. Articles of Incorporation, By-Laws, Partnership Agreement, etc. ............ 38
4.18. Disclosures ................................................................ 38
SECTION 5. CONDITIONS PRECEDENT ....................................................... 39
5.1. Conditions to Loans ........................................................ 39
5.2. Conditions Precedent to All Subsequent Loans ............................... 42
SECTION 6. AFFIRMATIVE COVENANTS ...................................................... 43
6.1. Financial Statements ....................................................... 43
6.2. Certificates; Other Information ............................................ 43
6.3. Payment of Obligations ..................................................... 44
6.4. Conduct of Business and Maintenance of Existence ........................... 44
6.5. Leases ..................................................................... 45
6.6. Maintenance of Property, Insurance ......................................... 45
6.7. Inspection of Property; Books and Records; Discussions ..................... 45
6.8. Notices .................................................................... 45
6.9. Appraisals; Environmental Reports .......................................... 46
6.10. REIT Requirements .......................................................... 46
6.11. Indemnification ............................................................ 46
6.12. Changes in GAAP ............................................................ 47
6.13. Treatment Under Disclosure Documents ....................................... 47
6.14. Access to Collateral ....................................................... 47
6.15. NYSE Listing ............................................................... 47
6.16. Obligations in Excess of Maximum Availability .............................. 48
6.17. Replacement Reserve ........................................................ 48
6.18. Management of Borrower and Property ........................................ 48
6.19. Subordination of Payables to Affiliates .................................... 48
6.20. Use of Loan Proceeds for Construction ...................................... 48
6.21. ERISA Notices .............................................................. 48
6.22. ERISA Compliance ........................................................... 50
6.23. Payment of Taxes and Claims ................................................ 50
6.24. Inter-Borrower Advances of Loan Proceeds ................................... 50
SECTION 7. NEGATIVE COVENANTS ......................................................... 50
7.1. Financial Covenants ........................................................ 50
7.2. Restricted Payments ........................................................ 52
7.3. Merger; Sale of Assets; Termination and Other Actions ...................... 52
7.4. Transaction with Affiliates ................................................ 52
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7.5. Accounting Changes ......................................................... 52
7.6. No Liens ................................................................... 53
7.7. Fiscal Year ................................................................ 53
7.8. Chief Executive Office ..................................................... 53
7.9. Self-Direct REIT ........................................................... 53
7.10. Limitations on Certain Activities .......................................... 53
7.11. Distribution ............................................................... 53
7.12. ERISA ...................................................................... 53
SECTION 8. EVENTS OF DEFAULT .......................................................... 54
8.1. Events of Default .......................................................... 54
8.2. Annulment of Acceleration .................................................. 56
8.3. Cooperation by Each Borrower ............................................... 57
SECTION 9. THE AGENT .................................................................. 57
9.1. Appointment ................................................................ 57
9.2. Nature of Duties ........................................................... 57
9.3. Right to Request Information ............................................... 57
9.4. Rights, Exculpation, Etc. .................................................. 58
9.5. Reliance ................................................................... 58
9.6. Indemnification ............................................................ 59
9.7. Agent Individually ......................................................... 59
9.8. Successor Agents ........................................................... 59
9.9. Relations Among the Lenders ................................................ 60
9.10. Consent and Approvals; Agency Provisions Relating to Collateral ............ 60
9.11. Notice of Events of Default ................................................ 62
9.12. Ratable Sharing ............................................................ 62
9.13. Defaulting Lenders ......................................................... 63
9.14. Purchase of Defaulting Lender's Pro Rata Share ............................. 64
SECTION 10. GENERAL .................................................................... 64
10.1. Assignments and Participations ............................................. 64
10.2. Amendment and Waivers ...................................................... 67
10.3. Marshalling; Payments Set Aside ............................................ 68
10.4. Limitation of Liability .................................................... 69
10.5. Counterparts; Effectiveness; Inconsistencies ............................... 69
10.6 Disclaimer by Lender ....................................................... 69
10.7. Choice of Law .............................................................. 70
10.8. Submission to Jurisdiction; Waiver of Jury Trial; Etc. ..................... 70
10.9. Commercial Transaction ..................................................... 71
10.10. Notices; Certain Payments .................................................. 71
10.11. No Waivers; Cumulative Remedies; Entire Agreement; Headings ................ 72
10.12. Survival ................................................................... 72
10.13. Payment of Expenses and Taxes .............................................. 73
10.14. Further Assurances ......................................................... 73
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10.15. No Brokers ................................................................. 74
10.16. Confidentiality ............................................................ 74
SECTION 11. THE BORROWERS' AGENT ....................................................... 74
11.1. Appointment of Agent ....................................................... 74
EXHIBITS
EXHIBIT A - DEFINITIONS
EXHIBIT B - FORM OF NOTE
EXHIBIT C - FORM OF NOTICE OF BORROWING
EXHIBIT D - FORM OF CERTIFICATE OF ELIGIBLE PROPERTIES AND MAXIMUM AVAILABILITY
EXHIBIT E - FORM OF CERTIFICATE OF CURRENT AVAILABILITY
EXHIBIT F - FORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT G - LIST OF ENVIRONMENTAL REPORTS
EXHIBIT H - PERMITTED EXCEPTIONS
EXHIBIT I - RENT ROLL
EXHIBIT J - SERVICE AGREEMENTS
EXHIBIT K - ORGANIZATIONAL STRUCTURE AND RELATED MATTERS
EXHIBIT L - CERTIFICATE OF COVENANT COMPLIANCE
EXHIBIT M - FORM OF TENANT ESTOPPEL CERTIFICATE
EXHIBIT N - LIST OF PROPERTIES AND THEIR BORROWERS
EXHIBIT O - CERTIFICATE OF RECOURSE INDEBTEDNESS
EXHIBIT P - APPRAISED VALUES FOR INITIAL ELIGIBLE PROPERTIES
EXHIBIT Q - ERISA MATTERS
EXHIBIT R - FORM OF ASSIGNMENT AND ACCEPTANCE
SCHEDULES
SCHEDULE 1 ELIGIBLE PROPERTIES
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED AS OF FEBRUARY __, 1997
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (the
"AGREEMENT") is dated as of February __, 1997, by and among LEXINGTON CORPORATE
PROPERTIES, INC. ("LEXINGTON"), LEPERCQ CORPORATE INCOME FUND L.P. ("LCIFI"),
LEPERCQ CORPORATE INCOME FUND II L.P. ("LCIFII"), UNION HILLS ASSOCIATES ("UNION
HILLS"), NORTH TAMPA ASSOCIATES ("NORTH TAMPA"), AND LEX GP-1, INC. ("LGP-1"),
jointly and severally (collectively, the "BORROWERS" and individually, a
"BORROWER") acting by and through LEXINGTON CORPORATE PROPERTIES, INC.
("BORROWERS' Agent"); the institutions from time to time who are a party hereto
as LENDERS, (whether by execution of this Agreement or an Assignment and
Acceptance Agreement), the institutions from time to time who are a party hereto
as ISSUING BANKS, (whether by execution of this Agreement or an Assignment and
Acceptance Agreement) and FLEET NATIONAL BANK, a national banking association
("FLEET"), as administrative agent for the Lenders and the Issuing Banks (in
such capacity, together with its successors and assigns in such capacity, the
"AGENT").
WHEREAS, Lexington, LCIFI, LCIFII, Union Hills, North Tampa and
Fleet previously entered into a Revolving Credit and Term Loan Agreement dated
as of November 14, 1995, as amended by that certain First Amendment to Revolving
Credit Agreement dated December 23, 1996 (collectively the "ORIGINAL AGREEMENT")
which they now desire to further amend and restate in its entirety to, inter
alia (i) add LGP-1 as a Borrower, (ii) increase the maximum amount of Loans
available to the Borrowers from $25,000,000 to $60,000,000, (iii) enable Fleet
to act as administrative agent, and (iv) provide for the admission of additional
Lenders and Issuing Banks; and
WHEREAS, the Borrowers, Fleet and each other Lender and Issuing Bank
who hereafter becomes a party to this Agreement hereby agree that from and after
the date hereof this Amended and Restated Revolving Credit Agreement shall
supersede the Original Agreement in all respects and shall constitute the entire
agreement among the parties hereto with respect to the subject matter contained
herein; and
WHEREAS, the Borrowers desire to obtain a separate Revolving Credit
Commitment from each Lender pursuant to which such Lender will make loans to and
for the benefit of one or more of the Borrowers in an amount not to exceed such
Lender's Pro Rata Share in a maximum aggregate outstanding principal amount not
to exceed $60,000,000 at any one time; and
WHEREAS, each Lender is willing, on the terms and conditions
hereinafter set forth, to extend a Revolving Credit Commitment and to severally
make Loans to and for the benefit of the Borrowers.
NOW, THEREFORE, the parties hereto hereby agree as follows:
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SECTION 1. DEFINITIONS
1.1. DEFINED TERMS. As used in this Agreement all capitalized terms
not otherwise defined shall have the meanings set forth on Exhibit A, applicable
both to the singular and the plural forms of the terms defined.
1.2. COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed. Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such subsequent period, provided that if such period commences on
the last day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month during which such period is to end),
such period shall, unless otherwise expressly required by the other provisions
of this Agreement, end on the last day of the calendar month.
1.3. ACCOUNTING TERMS. Subject to Section 6.12, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4. OTHER TERMS. All other terms contained in this Agreement shall,
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1. REVOLVING CREDIT FACILITY.
(a) AVAILABILITY. Subject to the terms and conditions set forth in
this Agreement, each Lender hereby severally and not jointly agrees to make
revolving loans in Dollars (each individually, a "LOAN" and, collectively, the
"LOANS") to any Borrower from time to time during the period from the Initial
Funding Date to the Business Day next preceding the Revolving Credit Termination
Date, in an amount not to exceed such Lender's Pro Rata Share of the Revolving
Credit Availability at such time. All Loans comprising the same Borrowing under
this Agreement shall be made by the Lenders simultaneously and proportionately
to their then respective Pro Rata Shares, it being understood that no Lender
shall be responsible for any failure by any other Lender to perform its
obligation to make a Loan hereunder nor shall the Revolving Credit Commitment of
any Lender be increased or decreased as a result of any such failure. Subject to
the provisions of this Agreement, any Borrower may repay any outstanding Loan on
any day which is a Business Day and any amounts so repaid may be reborrowed by
any Borrower, up to the amount available under this Section 2.1(a), at the time
of such Borrowing, until the Business Day next preceding the Revolving Credit
Termination Date.
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(b) REVOLVING CREDIT TERMINATION DATE. The Revolving Credit
Commitment shall terminate, and all outstanding Revolving Credit Obligations
shall be paid in full (or, in the case of unmatured Letter of Credit
Obligations, provision for payment in cash shall be made to the satisfaction of
the Issuing Banks and the Requisite Lenders), on the Revolving Credit
Termination Date. Each Lender's obligation to make Loans shall terminate on the
Business Day next preceding the Revolving Credit Termination Date.
(c) EXTENSION OF REVOLVING CREDIT TERMINATION DATE. If no Default or
Event of Default then exists, Borrowers' Agent may request two-year extensions
of the then-existing Revolving Credit Termination Date by making such request in
writing (an "EXTENSION REQUEST") to Agent no earlier than January 1st and no
later than April 1st of the calendar year immediately preceding the
then-existing Revolving Credit Termination Date. The then-existing Revolving
Credit Termination Date shall be extended for two (2) years only if (i) Agent
and each Lender consents in writing to such extension no later than June 1st of
the year in which the Extension Request is received and (ii) Borrowers' Agent
pays to Agent the extension fee set forth in Section 2.14(c) no later than June
15th of such year. The failure to respond by Agent or any Lender to an Extension
Request shall be deemed to be a denial of such consent.
(d) MAXIMUM AVAILABILITY. Notwithstanding anything in this Agreement
to the contrary, in no event shall the Outstanding Amount exceed the Maximum
Availability.
(e) AUTHORIZED AGENTS. On the Closing Date and from time to time
thereafter, the Borrowers' Agent shall deliver to the Agent a certificate from a
Responsible Officer setting forth the names of the employees and agents
authorized to request Loans and Letters of Credit for each Borrower and to
request a conversion/continuation of any Loan and containing a specimen
signature of each such employee or agent. The employees and agents so authorized
shall also be authorized to act for any Borrower in respect of all other matters
relating to the Loan Documents. The Agent, Lenders and Issuing Banks shall be
entitled to rely conclusively on such employee's or agent's authority to request
such Loan or Letter of Credit or such conversion/continuation until the Agent,
Lenders and Issuing Banks receive written notice to the contrary. None of the
Agent, the Lenders, or the Issuing Banks shall have any duty to verify the
authenticity of the signature appearing on any written Notice of Borrowing or
Notice of Conversion/Continuation or any other document, and, with respect to an
oral request for such a Loan or Letter of Credit or such
conversion/continuation, the Agent shall have no duty to verify the identity of
any person representing himself or herself as one of the employees or agents
authorized to make such request or otherwise to act on behalf of such Borrower.
None of the Agent, any Lender or any Issuing Bank shall incur any liability to
any Borrower or any other Person in acting upon any telephonic or facsimile
notice referred to above which the Agent, such Lender, or such Issuing Bank
believes to have been given by a person duly authorized to act on behalf of such
Borrower and such Borrower hereby indemnifies and holds harmless the Agent, each
Lender and each Issuing Bank from any loss or expense Agent, Lenders and/or the
Issuing Banks might incur in acting in good faith as provided in this Section
2.1.
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2.2. PROMISE TO REPAY; EVIDENCE OF INDEBTEDNESS.
(a) PROMISE TO REPAY. Each Borrower hereby, jointly and severally,
agrees to pay when due the principal amount of each Loan, and further agrees to
pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the Notes. Each Borrower shall execute and deliver to each Lender
on the Closing Date, a joint and several promissory note, substantially in the
form of Exhibit B, with appropriate insertions, evidencing the Loans and
thereafter shall execute and deliver such other promissory notes substantially
in the form of Exhibit B as are necessary to evidence the Loans owing to the
Lenders after giving effect to any assignment thereof pursuant to Section 10.1,
(all such promissory notes and all amendments thereto, replacements thereof and
substitutions therefor being collectively referred to as the "NOTES"; and "NOTE"
means any one of the NOTES).
(b) LOAN RECORDS. Each Lender shall maintain in accordance with its
usual practice a record (a "LOAN ACCOUNT") evidencing the Indebtedness of the
Borrowers to such Lender resulting from each Loan owing to such Lender from time
to time, including the amount of principal and interest payable and paid to such
Lender from time to time hereunder and under the Notes.
(c) CONTROL SUB-REGISTER. The Register maintained by the Agent
pursuant to Section 10.1(c) shall include a sub-register for each Lender, in
which shall be recorded (i) the date and amount of each Borrowing made
hereunder, the type of Loan comprising such Borrowing and any Eurodollar
Interest Period applicable thereto, (ii) the effective date and amount of each
Assignment and Acceptance delivered to and accepted by it and the parties
thereto, (iii) the amount of any principal or interest due and payable or to
become due and payable from the Borrowers to each Lender hereunder or under the
Notes and (iv) the amount of any sum received by the Agent from any Borrower
hereunder and each Lender's share thereof.
(d) ENTRIES BINDING. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error.
(e) BORROWERS' OBLIGATIONS.
(i) Upon any Event of Default each Borrower jointly, severally and
unconditionally promises to pay to the Agent such amounts as are necessary to
cure the Event of Default or, at the option of the Agent, such Borrower agrees
to pay the outstanding Obligations in full.
(ii) Each Borrower's Obligation is unconditional except as expressly
set forth herein, and each Borrower agrees that the Agent, upon the occurrence
of an Event of Default, shall not be required to assert any claim or cause of
action against the Borrowers' Agent or any other Borrower before asserting any
claim or cause of action against a specific Borrower under this Agreement. Each
Borrower further agrees that the Agent shall not be required to pursue or
foreclose on any Collateral that it may receive from any Borrower as security
for any of the Obligations before making a claim or asserting a cause of action
against a specific Borrower under this Agreement.
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(iii) The failure of Agent to record any Security Document, or
Agent's improper recording or filing thereof, or Agent's failure to otherwise
perfect, protect, secure or insure any security interest or lien in any
Collateral given as security for the Obligations or any other collateral now or
hereafter securing all or any part of the Obligations shall not release any
Borrower from its liabilities and obligations under this Agreement.
(iv) Except as otherwise expressly provided herein or in the
Mortgages or Loan Documents, presentment, protest, demand, and notice of protest
and demand, and notice of receipt of any and all Collateral, and of the exercise
of possessory remedies or foreclosure on any and all Collateral received by
Agent from any Borrower are hereby waived.
(v) No Borrower's Obligation under this Agreement shall be affected,
modified, or impaired by the voluntary or involuntary liquidation, dissolution,
sale, or other disposition of all or substantially all of the assets,
marshalling of assets and liabilities, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangements,
composition with creditors or readjustment of, or other similar proceedings
affecting any other Borrower or the Borrowers' Agent, or any of the assets
belonging to any of them, nor shall this Agreement be affected, modified, or
impaired by the invalidity of the Note or any of the other Loan Documents.
(vi) Without notice to any other Borrower or the Borrower's Agent,
without the consent of a specific Borrower or Borrowers' Agent, the Agent may:
(a) grant a specific Borrower extensions of the time for payment of
the Obligations or any part hereof;
(b) renew any of the Obligations;
(c) grant a specific Borrower extensions of time for performance of
agreements or other indulgences;
(d) at any time release any or all of the Collateral, or any
mortgage, deed of trust or security interest in any Collateral, that now or
hereafter secures any of the Obligations;
(e) compromise, settle, release, or terminate any or all of the
obligations, covenants, or agreements of any specific Borrower under the Note or
other Loan Documents;
(f) at any time release any guarantor from its guarantee of any of
the Obligations; and
(g) with a specific Borrower's written consent, modify or amend any
obligation, covenant, or agreement of such Borrower as set forth in its Note or
any of the other Loan Documents (and such amendments shall nevertheless be
binding upon the other Borrowers).
(vii) This Agreement shall continue to be effective, or be
reinstated, as the case may be, if at time any whole or partial payment or
performance of any Obligations is or is sought to be
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rescinded or must otherwise be restored or returned by the Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any Borrower upon or as a result of the appointment of a receiver, intervenor,
or conservator of, or trustee or similar officer for, any Borrower or for any
substantial part of its property, or otherwise, all as though such payments and
performance had not been made, in any case to the extent of the performance
rescinded or payments restored or returned. This Agreement and each Borrower's
Obligations hereunder shall not be affected in any way by the transfer or other
disposition of any of the Collateral described in and granted to Agent pursuant
to the Loan Documents, whether by deed, operation of law, or otherwise except to
the extent such Collateral is released in accordance with the terms hereof.
(viii) Notwithstanding any provision contained in this Agreement or
any Security Document to the contrary, in the event of any bankruptcy or
insolvency proceeding involving LGP-1, LCIFII or North Tampa or in the event of
any challenge to the full enforceability of all or any of the Loan Documents by
any creditor of LGP-1, LCIFII or North Tampa or a trustee, receiver or
debtor-in-possession of, for or in respect of LGP-1, LCIFII or North Tampa, the
liability of LGP-1, LCIFII or North Tampa under the Security Documents shall be
limited to the lesser of the following amounts minus, in either case, one dollar
($1.00):
(a) the lowest amount which would render LGP-1, LCIFII or North
Tampa's undertakings under the Security Documents a fraudulent conveyance under
the laws of the State of Connecticut or other similar or analogous law or
statute of the state having jurisdiction over the subject matter; or
(b) the lowest amount which would render LGP-1, LCIFII or North
Tampa's undertakings under the Security Documents a fraudulent transfer under
Section 548 of the Bankruptcy Code of 1978, as amended.
Section 2.2 (e) (viii) shall control every other provision of the
Security Documents except, however, this provision shall not be construed to
prohibit a valuation of the assets of LGP-1, LCIFII or North Tampa for an amount
exceeding (a) or (b) above, minus $1.00, at a date subsequent to the date
hereof, whereupon the individual liability of LGP-1, LCIFII or North Tampa under
the Security Documents shall increase with the value of such assets up to a
maximum of $60,000,000.
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2.3. PROCEDURE FOR BORROWING UNDER THE REVOLVING CREDIT FACILITY
(a) NOTICE OF BORROWING. Whenever any Borrower desires to borrow
under Section 2.1, Borrowers' Agent shall deliver to Agent a notice of borrowing
(a "NOTICE OF BORROWING") substantially in the form of Exhibit C accompanied by
a Certificate of Eligible Properties and Maximum Availability, substantially in
the form of Exhibit D and a Certificate of Current Availability substantially in
the form of Exhibit E no later than 10:00 A.M. (New York time) at least five (5)
Business Days in advance of the proposed Funding Date for any Eurodollar Loan
and no later than the Business Day immediately preceding the proposed Funding
Date for any Base Rate Loan. The Notice of Borrowing shall specify and include
(as appropriate):
(i) the Borrower and proposed Funding Date (which shall be a
Business Day);
(ii) the amount of the proposed Borrowing (which amount shall be in
a minimum aggregate amount of $1,000,000 and integral multiples of $100,000 in
excess of that amount);
(iii) whether such Loans will be Base Rate Loans or Eurodollar Loans
and, if Eurodollar Loans are specified, the initial Interest Period requested
for such Eurodollar Loans;
(iv) the account into which the net proceeds of the requested
Borrowing is to be credited;
(v) a statement as to whether the representations and warranties
contained in the Loan Documents are true, correct and accurate in all material
respects to the same extent as though made on and as of the date of such Notice
of Borrowing;
(vi) a statement as to whether any Default or Event of Default has
occurred and is continuing or would result from the proposed Borrowing; and
(vii) a statement as to whether the amount of the proposed Borrowing
will cause the aggregate outstanding principal amount of the Loans to exceed the
Maximum Availability currently in effect. Subject to the provisions of Section
2.6, in the event that any Lender shall fail to fund its Pro Rata Share of any
Loan on or prior to the applicable Funding Date and the Agent and/or the other
Lenders shall fail to advance the defaulted amount, Borrowers' Agent may (but
shall not be obligated to) cancel such Notice of Borrowing upon notice to Agent
given no later than 2:00 p.m. (EST) on the Funding Date. Agent shall give
Borrowers' Agent notice of any Lender's default as soon as practicable after
Agent becomes aware of such default. Except as otherwise provided in the
immediately foregoing sentence or in Sections 2.11 and 2.12, a Notice of
Borrowing shall be irrevocable, and the Borrowers shall be bound to make the
borrowing specified in such Notice of Borrowing in accordance therewith.
If Borrowers' Agent fails to specify the type of Loan (i.e. Base
Rate Loan or Eurodollar Loan) or an Initial Interest Period, Borrowers' Agent
will be deemed, in each case, to have requested a Base Rate Loan.
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(b) MAKING OF LOANS. (i) Promptly after receipt of a Notice of
Borrowing under Section 2.3(a), the Agent shall notify each Lender by facsimile
transmission of the proposed Borrowing and send each Lender a copy of the Notice
of Borrowing including exhibits. Each Lender shall deposit an amount equal to
its Pro Rata Share of the Borrowing requested by the Borrowers' Agent with the
Agent at its office in Providence, Rhode Island or such other office as Agent
shall designate from time to time, in immediately available funds, not later
than 11:00 a.m. (New York time) on the respective Funding Date therefor. Subject
to the fulfillment of the conditions precedent set forth in Section 5.1 or
Section 5.2, as applicable, the Agent shall make the proceeds of such amounts
received by it available to the Borrowers' Agent at the Agent's office in
Providence, Rhode Island on such Funding Date (or on the date received if later
than such Funding Date) and shall disburse such proceeds in accordance with the
Borrowers' Agent's disbursement instructions set forth in the applicable Notice
of Borrowing. The failure of any Lender to deposit the amount described above
with the Agent on the applicable Funding Date shall not relieve any other Lender
of its obligations hereunder to make its Loan on such Funding Date. In the event
the conditions precedent set forth in Section 5.1 or Section 5.2 are not
fulfilled as of the proposed Funding Date for any Borrowing, the Agent shall
promptly return, by wire transfer of immediately available funds, the amount
deposited by each Lender to such Lender.
(ii) Unless the Agent shall have been notified by any Lender on the
Business Day immediately preceding the applicable Funding Date in respect of any
Borrowing that such Lender does not intend to fund its Loan requested to be made
on such Funding Date, the Agent may assume that such Lender has funded its Loan
and is depositing the proceeds thereof with the Agent on the Funding Date
therefor, and the Agent in its sole discretion may, but shall not be obligated
to, disburse a corresponding amount to the Borrowers' Agent on the applicable
Funding Date. If the Loan proceeds corresponding to that amount are advanced to
the Borrowers' Agent by the Agent but are not in fact deposited with the Agent
by such Lender on or prior to the applicable Funding Date, such Lender agrees to
pay to the Agent forthwith on demand such corresponding amount, together with
interest thereon, for each day from the date such amount is disbursed to or for
the benefit of the Borrowers until the date such amount is paid or repaid to the
Agent at the Federal Funds Rate for the first three (3) Business Days, and
thereafter at the interest rate applicable to such Borrowing. If such Lender
shall pay to the Agent the corresponding amount, the amount so paid shall
constitute such Lender's Loan. This Section 2.3(b)(ii) does not relieve any
Lender of its obligation to make its Loan on any applicable Funding Date.
2.4. INTEREST ON THE LOANS AND OTHER OBLIGATIONS.
(a) GENERALLY. Each Loan shall be (i) a Eurodollar Loan or a Base
Rate Loan as selected or deemed to have been selected by Borrowers' Agent
initially at the time a Notice of Borrowing is given pursuant to Section 2.3(a);
or (ii) as selected pursuant to Section 2.5(c); except in each case for any
portion of a Eurodollar Loan which is converted to a Base Rate Loan pursuant to
Section 2.11 or 2.12. All Loans and the outstanding principal balance of all
other Obligations shall bear interest on the unpaid principal amount thereof
from the date such Loans are made and such other Obligations are due and payable
until paid in full but excluding the date
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of repayment (whether by acceleration or otherwise), at the interest rates (such
interest rate(s) as may be in effect from time to time, the "APPLICABLE
RATE(S)") specified as follows:
(iv) in the case of a Eurodollar Loan, at an interest rate per
annum for and during each Interest Period equal to the Eurodollar
Rate for such Interest Period; and
(v) in the case of the Base Rate Loan or such other
Obligation, at an interest rate per annum equal to the Base Rate in
effect from time to time.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrowers' Agent at the time a Notice of Borrowing or a Notice
of Conversion/Continuation is delivered by the Borrowers' Agent to the Agent;
provided, however, the Borrowers' Agent may not select the Eurodollar Rate as
the applicable basis for determining the rate of interest on such a Loan if at
the time of such selection a Default or Event of Default would occur from such
Borrowing or conversion or continuation or has occurred and is continuing and
further provided that, from and after the occurrence and during the continuance
of an Event of Default, each Eurodollar Loan then outstanding may, at the
Agent's option, convert to a Base Rate Loan. If on any day any Loan is
outstanding with respect to which a Notice of Continuation/Conversion has not
been delivered to the Agent in accordance with the terms of this Agreement
specifying the basis for determining the rate of interest on that day, then for
that day interest on that Loan shall be determined by reference to the Base
Rate.
(b) INTEREST PAYMENTS. (i) Interest accrued on each Loan shall be
calculated on the 1st day of each calendar month and shall be payable in arrears
(A) on the first day of each calendar month, commencing on the first such day
following the making of such Loan, (B) upon the payment or prepayment thereof in
full or in part, and (C) if not theretofore paid in full, at maturity (whether
by acceleration or otherwise) of such Loan. Whenever any payment to be made
hereunder or under any Loan Document, including, without limitation, any
principal of or interest on any Loan, shall become due and payable, or whenever
the last day of any Interest Period would otherwise occur, on a day which is not
a Business Day, such payment shall be made and the last day of such Interest
Period shall occur on the next succeeding Business Day and such extension of
time shall in such case be included in computing interest on such payment.
(ii) Interest accrued on the principal balance of any
outstanding Reimbursement Obligations shall be calculated on the last day of
each calendar month and shall be payable in arrears (A) on the first day of the
calendar month, commencing on the first such day following the incurrence of
such Reimbursement Obligations, (B) upon repayment thereof in full or in part,
and (C) if not theretofore paid in full, at the time such other Reimbursement
Obligations become due and payable (whether by acceleration or otherwise).
(c) LATE CHARGE; DEFAULT INTEREST. If the Borrowers shall fail to
make any payment of principal or interest on any portion of a Loan or any other
Obligation becoming due, hereunder or under any of the Loan Documents within ten
(10) days of the date such payment is due Borrowers shall be subject to a late
charge of five percent (5%) of the amount of such payment. Borrowers shall be
entitled to a one-time waiver of the late charge prior to the
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Revolving Credit Termination Date. Upon the occurrence and during the
continuance of an Event of Default, Borrowers shall pay interest (to the extent
permitted by law in the case of interest on overdue interest) on such defaulted
amount accruing from and including the date of such Event of Default up to but
excluding the date of actual payment (after as well as before judgment) at a
rate per annum which is the sum of (i) four percent (4%) plus (ii) the
Applicable Rate otherwise payable. All payments due under this Section 2.4(c)
shall be payable upon demand.
(d) INTEREST RATE DETERMINATION. Upon determining the Applicable
Rate for each Interest Period, Agent shall promptly notify Borrowers' Agent.
2.5. DURATION AND DETERMINATION OF INTEREST PERIOD; DETERMINATION OF
INTEREST RATE; CONTINUATION/CONVERSION OF LOANS
(a) DURATION AND DETERMINATION OF INTEREST PERIOD. By giving notice
as set forth in Section 2.3(a) (with respect to a Borrowing of Eurodollar Loans)
or Section 2.5(c) (with respect to a conversion into or continuation of
Eurodollar Loans), Borrowers' Agent shall have the option, subject to the other
provisions of this Section 2.5, to select an interest period (each, an "INTEREST
PERIOD") to apply to the Loans described in such notice, subject to the
following provisions:
(i) Subject to Sections 2.11 and 2.12, the Borrowers' Agent may
select, as to a particular Borrowing of Eurodollar Loans, an Interest Period of
either one (1), three (3) or six (6) months in duration; provided, however, that
if Agent's syndication of not less than $35,000,000 of the Revolving Credit
Commitments does not close on the Closing Date, Borrowers' Agent shall not be
entitled to select an Interest Period applicable to a Eurodollar Loan in excess
of one (1) month's duration until four (4) months after the Closing Date unless
otherwise permitted by the Agent;
(ii) In the case of immediately successive Interest Periods
applicable to a Borrowing of Eurodollar Loans, each successive Interest Period
shall commence on the day on which the next preceding Interest Period expires;
(iii) If any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall be extended to expire on the
next succeeding Business Day if the next succeeding Business Day occurs in the
same calendar month, and if there will be no succeeding Business Day in such
calendar month, the Interest Period shall expire on the immediately preceding
Business Day;
(iv) Borrowers' Agent may not select an Interest Period as to any
Loan if such Interest Period terminates later than the Revolving Credit
Termination Date;
(v) Borrowers' Agent may not select an Interest Period with respect
to any portion of principal of a Loan which extends beyond a date on which any
Borrower is required to make a scheduled payment of such portion of principal;
and
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(vi) There shall be no more than eight (8) Interest Periods in
effect at any one time for any Eurodollar Loans, Base Rate Loans or any
combination of the two.
Notwithstanding the foregoing, Borrowers' Agent shall be entitled to
select an Interest Period of less than one (1) month in the event it wishes to
combine one or more Eurodollar Loans into a single Interest Period.
If Borrowers' Agent fails to specify an Interest Period in any
Notice of Borrowing, Borrowers' Agent shall be deemed to have selected a Base
Rate Loan; provided that if Borrowers' Agent subsequently provides Agent with a
new Notice of Borrowing properly specifying an Interest Period for a Eurodollar
Loan, such Base Rate Loan shall be converted into a Eurodollar Loan in
accordance with the requirements for a continuation/conversion under Section 2.5
(c).
(b) DETERMINATION OF INTEREST RATE. As soon as practicable on the
second Business Day prior to the first day of each Interest Period (the
"INTEREST RATE DETERMINATION DATE"), the Agent shall determine (pursuant to the
procedures set forth in the definition OF "EURODOLLAR RATE") the interest rate
which shall apply to the Eurodollar Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to the
Borrowers' Agent and to each Lender. The Agent's determination shall be presumed
to be correct, absent manifest error, and shall be binding upon each Borrower.
Any failure by any Lender to take into account the Eurodollar Reserve Percentage
when calculating interest due on Eurodollar Loans shall not constitute, whether
by course of dealing or otherwise, a waiver by such Lender of its right to
collect such amount for any future period.
(c) CONVERSION/CONTINUATION OF LOANS.
(i) Subject to the provisions of Sections 2.11 and 2.12, Borrowers'
Agent shall have the option (A) to convert at any time all or any part of
outstanding Base Rate Loans to Eurodollar Loans or (B) to convert all or any
part of outstanding Eurodollar Loans having Interest Periods which expire on the
same date to Base Rate Loans on such expiration date; or (C) to continue all or
any part of outstanding Eurodollar Loans having Interest Periods which expire on
the same date as Eurodollar Loans, and the succeeding Interest Period of such
continued Loans shall commence on such expiration date; provided, however, no
such outstanding Loan may be continued as, or be converted into, a Eurodollar
Loan (i) if the continuation of, or the conversion into, would violate any of
the provisions of Section 2.11 or 2.12 or (ii) if a Default or Event of Default
would occur as a result thereof or has occurred and is continuing. Any
conversion into or continuation of Eurodollar Rate Loans under this Section
2.5(c) shall be in a minimum amount of $1,000,000 and in integral multiples of
$100,000 in excess of that amount, except in the case of a conversion into or a
continuation of an entire Borrowing of Non Pro Rata Loans.
(ii) To convert or continue a Loan, Borrowers' Agent shall deliver a
Notice of Continuation/Conversion substantially in the form of Exhibit F to
Agent no later than 10:00
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A.M. (New York City time) at least five (5) Business Days in advance of the
proposed continuation/conversion date in the case of a conversion to, or a
continuation of, Eurodollar Loans or at least one (1) Business Day in advance of
the proposed continuation/conversion date in the case of a conversion to a Base
Rate Loan. A Notice of Continuation/Conversion shall specify (A) the proposed
continuation/conversion date (which shall be a Business Day), (B) the principal
amount of the Loans to be continued/converted, (C) whether such Loan shall be
converted and/or continued, (D) in the case of a continuation of, or conversion
to, a Eurodollar Loan, the requested Interest Period, (E) that the
representations and warranties contained in the Loan Documents are true, correct
and accurate in all material respects to the same extent as though made on and
as of the date of such Notice of Continuation/Conversion, and (F) that no
Default or Event of Default has occurred and is continuing or would result from
the proposed continuation/conversion.
Promptly after receipt of a Notice of Conversion/Continuation the
Agent shall notify each Lender by facsimile transmission of the proposed
conversion/continuation. Except as otherwise provided in Sections 2.11 and 2.12,
a Notice of Continuation/Conversion shall be irrevocable on and after the
related Interest Rate Determination Date, and Borrowers shall be bound to effect
a continuation and/or conversion (as applicable) in accordance therewith.
No more than eight (8) Eurodollar Loans, Base Rate Loans or any
combination of the two may be outstanding at any one time.
If Borrowers' Agent fails to give a valid Notice of
Continuation/Conversion in respect of any portion of a Eurodollar Loan which is
not repaid in accordance with the terms hereof at the end of the relevant
Interest Period, such portion shall be converted automatically into a Base Rate
Loan; provided that if Borrowers' Agent subsequently gives a valid Notice of
Continuation/Conversion in respect of such Base Rate Loan, it shall be converted
into a Eurodollar Loan in accordance with the requirements for a
continuation/conversion under this Section 2.5.
2.6. OPTIONAL PREPAYMENTS; MANDATORY PREPAYMENTS
(a) Subject to Section 2.6(c), Borrowers may, at their option,
prepay any Eurodollar Loans on the last day of the applicable Interest Period,
in whole or in part, without premium or penalty, upon at least three Business
Days' prior written notice to Agent, specifying the amount of prepayment. Base
Rate Loans may be prepaid on one Business Days' prior written notice to Agent.
Each notice of prepayment pursuant to this clause (a) shall be irrevocable and
the payment amount specified in such notice shall be due and payable on the date
specified, together with accrued interest to such date on the Loans and all
amounts (if any) payable pursuant to Section 2.13. Partial prepayments of the
Loans pursuant to this clause (a) shall be in an aggregate principal amount of
$100,000 or an integral multiple thereof.
(b) The Loans shall be subject to certain mandatory repricing
pursuant to and upon the occurrence of the events described in the provisions of
Sections 2.11 and 2.12.
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(c) If at any time prior to the Revolving Credit Termination Date
(except as a result of the failure of a Property to continue to qualify as an
Eligible Property solely due to the failure of an Approved Tenant to maintain
its Minimum Required Tenant Credit Rating) the Outstanding Amount exceeds
Maximum Availability (hereinafter "EXCESS OUTSTANDINGS") (which event,
notwithstanding the provisions of this Section, shall be a Default), Borrowers
shall within fifteen (15) Business Days of the date Agent notifies Borrowers'
Agent of same reduce the Outstanding Amount to an amount that is equal to or
less than Maximum Availability.
(d) If at any time a Property fails to continue to qualify as an
Eligible Property solely as a result of an Approved Tenant failing to maintain
the Minimum Required Tenant Credit Rating and this results in Excess
Outstandings, Borrowers shall be required to make monthly principal payments
based on the amount of such Excess Outstandings. Such monthly principal payments
shall be calculated based on a five-year straight line amortization schedule and
shall commence ninety (90) days from the date an Eligible Property ceased to
qualify as an Eligible Property for such reason, (unless the Excess Outstandings
have been eliminated by Requisite Lender's approval and acceptance of another
Eligible Property as Collateral, or otherwise during such period), with all
unpaid principal and/or interest arising under such circumstances due and
payable in full on the next occurring Revolving Credit Termination Date without
taking into account any extension rights.
Notwithstanding the foregoing, if any subsequent event occurs which
would have resulted in such Property losing its status as an Eligible Property
under the terms of Section 2.16(a)(i), (ii) and (c), the provisions of Section
2.6(c) shall apply immediately.
(e) Subject to the application of the provisions of Section 2.8,
Borrowers' Agent may designate the application of any prepayments to be applied
to principal on the Loans to the Eurodollar Loans, and/or Base Rate Loans, as it
may select, provided that if Borrowers' Agent does not designate such
application, such prepayments shall be applied (i) first to outstanding Base
Rate Loans, and (ii) second to outstanding Eurodollar Loans.
2.7. COMPUTATION OF INTEREST AND FEES. Interest, fees and other
amounts calculated on the basis of a rate per annum shall be computed on the
basis of a 360-day year for the actual number of days elapsed. In computing
interest on any Loan, the date of the making of the Loan or the first day of an
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of an Interest Period, as the case may be, shall be
excluded; provided, however, if a Loan is repaid on the same day on which it is
made, one (1) day's interest shall be paid on such Loan.
2.8. PAYMENTS. (a) MANNER AND TIME OF PAYMENT. All payments of
principal of and interest on the Loans and Reimbursement Obligations and other
Obligations (including, without limitation, fees and expenses) which are payable
to the Agent, the Lenders or any Issuing Bank shall be made without condition or
reservation of right, in immediately available funds, delivered to the Agent
(or, in the case of Reimbursement Obligations, to the pertinent Issuing Bank)
not later than 1:00 p.m. (New York time) on the date and at the place due, to
such account of the Agent (or such Issuing Bank) as it may designate, for the
account of the Agent, the
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Lenders or such Issuing Bank, as the case may be; and funds received by the
Agent, including, without limitation, funds in respect of any Loans to be made
on that date, not later than 1:00 p.m. (New York time) on any given Business Day
shall be credited against payment to be made that day and, for purposes of
calculation of interest, funds received by the Agent after that time shall be
deemed to have been paid on the next succeeding Business Day. Payments actually
received by the Agent for the account of the Lenders or the Issuing Banks, or
any of them, shall be paid to them by the Agent promptly after receipt thereof.
(b) APPORTIONMENT OF PAYMENTS. (i) Subject to the provisions of
Section 2.8(b)(v) and Section 2.8(b)(vi), all payments of principal and interest
in respect of outstanding Loans, all payments in respect of Reimbursement
Obligations, all payments of fees and all other payments in respect of any other
Obligations, shall be allocated among such of the Lenders and Issuing Banks as
are entitled thereto, in proportion to their respective Pro Rata Shares or
otherwise as provided herein. Subject to the provisions of Section 2.8(b)(ii),
all such payments and any other amounts received by the Agent from or for the
benefit of the Borrowers shall be applied in the following order:
(A) to pay principal of and interest on any portion of the
Loans which the Agent may have advanced on behalf of any Lender for
which the Agent has not then been reimbursed by such Lender or any
Borrower,
(B) to pay all other Obligations then due and payable and
(C) as the Borrowers' Agent so designates.
Unless otherwise designated by the Borrowers' Agent, all principal payments in
respect of Loans shall be applied first, to repay outstanding Base Rate Loans,
and then to repay outstanding Eurodollar Rate Loans with those Eurodollar Rate
Loans which have earlier expiring Eurodollar Interest Periods being repaid prior
to those which have later expiring Eurodollar Interest Periods.
(ii) After the occurrence of an Event of Default and while the
same is continuing, the Agent shall apply all payments in respect of any
Obligations in the following order:
(A) first, to pay principal of and interest on any portion of
the Loans which the Agent may have advanced on behalf of any Lender
for which the Agent has not then been reimbursed by such Lender or
any Borrower;
(B) second, to pay Obligations in respect of any reasonable
fees, expense reimbursements or indemnities then due to the Agent;
(C) third, to pay principal of and interest on Letter of
Credit Obligations (or, to the extent such Obligations are
contingent, deposited with the Agent to provide cash collateral in
respect of such Obligations which cash collateral shall be released
and
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applied in accordance with the provisions of this Section 2.8(b) in
the event such Letter of Credit shall expire undrawn upon);
(D) fourth, to pay Obligations in respect of any fees,
expenses reimbursements or indemnities then due to the Lenders and
the Issuing Banks;
(E) fifth, to pay interest due in respect of Loans;
(F) sixth, to the ratable payment or prepayment of principal
outstanding on Loans; and
(G) seventh, to the ratable payment of all other Obligations.
The order of priority set forth in this Section 2.8(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Agent, the Lenders, the Issuing Banks and other Holders as
among themselves; provided, however, if such application is other than in
accordance with the express designation of Borrowers' Agent, Agent shall give
prompt notice thereof to Borrowers' Agent. The order of priority set forth in
clauses (C) through (G) of this Section 2.8(b)(ii) may at any time and from time
to time be changed by the Requisite Lenders without necessity of notice to or
consent of or approval by any Borrower, and Holder which is not a Lender, or any
other Person. The order of priority set forth in clauses (A) and (B) of this
Section 2.8(b)(ii) may be changed only with the prior written consent of the
Agent.
(iii) The Agent, in its sole discretion subject only to the
terms of this Section 2.8(b)(iii), may pay from the proceeds of Loans made to
the Borrower hereunder if made pursuant to a deemed request as provided in this
Section 2.8(b)(iii), all amounts payable by the Borrower hereunder, including,
without limitation, amounts payable with respect to payments of principal,
interest, Reimbursement Obligations and fees and all reimbursements for expenses
pursuant to Section 10.13 in any case, after the occurrence and during the
continuance of an Event of Default with respect to nonpayment of such amounts.
Each Borrower hereby irrevocably authorizes the Lenders to make Loans, which
Loans shall be Base Rate Loans, in each case, upon notice from the Agent as
described in the following sentence for the purpose of paying principal,
interest, Reimbursement Obligations and fees due from any Borrower, reimbursing
expenses pursuant to Section 10.13 and paying any and all other amounts due and
payable by any Borrower hereunder, under the Notes or under any other Loan
Document, from and after the occurrence and during the continuance of an Event
of Default with respect to nonpayment of such amounts, and agrees that all such
Loans so made shall be deemed to have been requested by it pursuant to Section
2.1 as of the date of the aforementioned notice. The Agent shall request Loans
on behalf of the Borrowers as described in the preceding sentence by notifying
the Lenders by facsimile transmission or other similar form of transmission
(which notice the Agent shall thereafter promptly transmit to the Borrowers), of
the amount and Funding Date of the proposed Borrowing and that such Borrowing is
being requested on the Borrowers' behalf pursuant to this Section 2.8(b)(iii).
On the proposed Funding Date, the Lenders shall make the requested Loans in
accordance with the procedures and subject to the conditions
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specified in Section 2.1. Any Loans made under this Section 2.8(b)(iii) shall
cure the Event of Default for which such Loans were advanced to the extent such
Event of Default can be cured by the payment of money and the making of such a
Loan does not create a Default or Event of Default.
(iv) Subject to Section 2.8(b)(v), the Agent shall promptly
distribute to each Lender and Issuing Bank at its primary address set forth on
the appropriate signature page hereof or the signature page to the Assignment
and Acceptance by which it became a Lender or Issuing Bank, or at such other
address as a Lender, an Issuing Bank or other Holder may request in writing,
such funds as such Person may be entitled to receive, subject to the provisions
of Section 9; provided that the Agent shall under no circumstances be bound to
inquire into or determine the validity, scope or priority of any interest or
entitlement of any Holder and may suspend all payments or seek appropriate
relief (including, without limitation, instructions from the Requisite Lenders
or an action in the nature of interpleader) in the event of any doubt or dispute
as to any apportionate or distribution contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata Share of
any Loan requested by any Borrower (provided Borrowers' Agent has not cancelled
its Notice of Borrowing under Section 2.3(a)(vii)) which such Lender is
obligated to fund under the terms of this Agreement (the funded portion of such
Loan being hereinafter referred to as a "NON PRO RATA LOAN"), until the earlier
of such Lender's cure of such failure and the termination of the Revolving
Credit Commitments, the proceeds of all amounts thereafter repaid to the Agent
by the Borrowers and otherwise required to be applied to such Lender's share of
all other Obligations pursuant to the terms of this Agreement shall be advanced
to the Borrowers by the Agent on behalf of such Lender to cure, in full or in
part, such failure by such Lender, but shall nevertheless be deemed to have been
paid to such Lender in satisfaction of such other Obligations. Notwithstanding
anything in this Agreement to the contrary:
(A) the foregoing provisions of this Section 2.8(b)(v) shall
apply only with respect to the proceeds of payments of Obligations
and shall not affect the conversion or continuation of Loans
pursuant to Section 2.5(c);
(B) a Lender shall be deemed to have cured its failure to fund
its Pro Rata Share of any Loan at such time as an amount equal to
such Lender's original Pro Rata Share of the requested principal
portion of such Loan is fully funded to the Borrower, whether made
by such Lender itself or by operation of the terms of this Section
2.8(b)(v), and whether or not the Non Pro Rata Loan with respect
thereto has been repaid, converted or continued;
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(C) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Pro Rata Share of any
Loan ("CURE LOANS") shall, at the election of Borrowers' Agent (made
on the dates such amounts are advanced pursuant to this Section
2.8(b)(v), either bear interest at the Base Rate or shall be
Eurodollar Loans with Interest Periods of either one (1), three (3)
or six (6) months in effect from time to time, and for all other
purposes of this Agreement shall be treated as if they were Base
Rate Loans or Eurodollar Loans; and
(D) regardless of whether or not an Event of Default has
occurred or is continuing, and notwithstanding the instructions of
the Borrowers' Agent as to its desired application, all repayments
of principal which, in accordance with the other terms of this
Section 2.8, would be applied to the outstanding Base Rate Loans
shall be applied first, ratably to all Base Rate Loans constituting
Non Pro Rata Loans, second, ratably to Base Rate Loans other than
those constituting Non Pro Rata Loans or Cure Loans and, third,
ratably to Base Rate Loans constituting Cure Loans.
(vi) In the event a Lender (a "Designated Lender") shall have
requested additional compensation from any Borrower under Sections 2.10, 2.11 or
2.12, the Borrowers' Agent may, at its sole election, (a) make written demand on
such Designated Lender (with a copy to the Agent) for the Designated Lender to
make reasonable efforts to assign, and such Designated Lender shall assign
pursuant to one or more duly executed Assignment and Acceptances to one or more
Eligible Assignees which the Borrowers' Agent shall have identified for such
purpose, all of such Designated Lender's rights and obligations under this
Agreement and the Notes (including, without limitation, its Revolving Credit
Commitment, all Loans owing to it, and all of its participation interests in
Letters of Credit) in accordance with Section 10.1 or (b) repay all Loans owing
to the Designated Lender together with interest accrued with respect thereto the
date of such repayment and all fees and other charges accrued or payable under
the terms of this Agreement for the benefit of the Designated Lender to the date
of such repayment and remit to the Agent to be held as cash collateral an amount
equal to the participation interest of the Designated Lender in Letters of
Credit. Any such repayment and remittance shall be for the sole credit of the
Designated Lender and not for any other Lender. All expenses incurred by the
Agent in connection with the foregoing shall be for the sole account of the
Borrowers and shall constitute Obligations hereunder. In no event shall
Borrowers Agents' election under the provisions of this Section 2.8(b)(vi)
affect any Borrower's obligation to pay the additional compensation required
under either Sections 2.10, 2.11 or Section 2.12.
(c) PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be made
by the Borrower hereunder or under the Notes is stated to be due on a day which
is not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, as set forth in Section 2.4(b), the next preceding Business
Day), and any such extension of time shall be included in the computation of the
payment of interest and fees hereunder.
2.9. USE OF PROCEEDS AND LETTERS OF CREDIT. Except for any amounts
advanced by Agent under Section 2.8(b)(iii), the proceeds of the Loans and the
Letters of Credit issued for the account of any Borrower hereunder shall be used
directly (or indirectly in the case of Letters of
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Credit) only (i) to refinance existing indebtedness (ii) to provide interim
financing for new income-producing properties; (iii) to fund leasehold
improvements; (iv) for the renovation or expansion of income-producing
properties and (v) for working capital purposes.
2.10. INCREASED COSTS.
(a) If any change in existing law or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Lender
by any central bank or other fiscal, monetary or other authority (whether or not
having the force of law), shall:
(i) subject such Lender to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Agreement, the Loan Documents, Revolving Credit Commitment or the Loans (other
than Excluded Taxes); or
(ii) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to such Lender of the
principal of or the interest on any Loans or any other amounts payable to such
Lender under this Agreement or the other Loan Documents; or
(iii) impose or increase or render applicable (other than to
the extent specifically provided for elsewhere in this Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or commitments of such Lender;
or
(iv) impose on any party any other conditions or requirements
with respect to this Agreement, the Loan Documents, the Loans, the Revolving
Credit Commitment, or any class of loans or commitments of which any of the
Loans or the Revolving Credit Commitment forms a part;
and the result of any of the foregoing is:
(A) to increase the cost to such Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans or its Pro Rata
Share thereof; or
(B) to reduce the amount of principal, interest or other
amount payable to such Lender hereunder on account of its Pro Rata Share of any
of the Loans; or
(C) to require such Lender to make any payment or to forgo any
interest or other sum payable hereunder, the amount of which payment or foregone
interest or other sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Lender from the Borrowers hereunder, then,
and in each such case, the Borrowers will, within
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thirty (30) days after demand made by such Lender at any time and from time to
time and as often as the occasion therefor may arise, pay to such Lender, such
additional amounts as such Lender shall determine in good faith will be
sufficient to compensate such Lender for such additional cost, reduction,
payment or foregone interest or other sum.
(b) If any change in existing law or future law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) or the interpretation thereof by a court or governmental authority with
appropriate jurisdiction affects the amount of capital required or expected to
be maintained by banks or bank holding companies and as a result thereof a
Lender determines in good faith that the amount of capital required to be
maintained by it must be increased as a result of the Loans made or deemed to be
made pursuant hereto, then such Lender may notify the Borrowers' Agent of such
fact, and the Borrowers' Agent shall pay to such Lender from time to time within
30 days after demand, as an additional fee payable hereunder, such amount as
such Lender shall determine in good faith and certify in a notice to the
Borrowers' Agent to be an amount that will adequately compensate such Lender in
light of these circumstances for its increased costs of maintaining such
capital.
2.11. CHANGE IN LAW RENDERING EURODOLLAR LOANS UNLAWFUL.
Notwithstanding anything to the contrary herein contained, in the event that any
Requirements of Law or any change in any existing Requirements of Law or in the
interpretation thereof by any Governmental Authority charged with the
administration thereof, in any case adopted, issued or effective after the date
hereof, shall make it unlawful for any Lender to fund any portion of the
Eurodollar Loans or to give effect to its obligations as contemplated hereby
with respect to its making Eurodollar Loans Agent shall, upon the happening of
such event, notify Borrowers' Agent thereof in writing stating the reason
therefor and the effective date of such event, and upon the effectiveness of any
such event the obligation of such Lender to make or maintain its Eurodollar
Loans to any Borrower shall forthwith be suspended for the duration of such
illegality and during such illegality such Lender shall, upon payment of any
amounts owing under Section 2.13 with respect to such conversion, convert its
share of the Eurodollar Loans to (upon effectiveness of any such event and
during the continuance of such event) Base Rate Loans. If and when such
illegality with respect thereto ceases to exist, such suspension shall cease and
Agent shall notify Borrowers' Agent that the Base Rate Loan into which such
share of the Eurodollar Loans was converted pursuant to this Section 2.11 was
converted to a Eurodollar Loan, respectively, on the first day of the next
succeeding Interest Period.
2.12. EURODOLLAR AVAILABILITY. In the event, and on each occasion,
that on the Business Day two Business Days prior to the commencement of any
Interest Period for the Eurodollar Loans, Agent shall have determined in good
faith (which determination shall, in the absence of manifest error, be
conclusive and binding upon Borrowers) that U.S. Dollar deposits in the amount
of the principal amount of the Eurodollar Loans which is to have such Interest
Period are not generally available in the London interbank market, or that the
rate at which such U.S. Dollar deposits are being offered will not accurately
reflect the cost to any Lender making or funding such principal amount of such
Eurodollar Loans during such Interest Period, or that reasonable means do not
exist for ascertaining the Eurodollar Rate, Agent shall, as soon as practicable
thereafter, give written or telephonic notice of such determination to
Borrowers' Agent and (i)
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such principal amount of such Eurodollar Loans shall automatically be converted,
as of the last day of the Interest Period during which such determination is
made, to Base Rate Loans and (ii) any request by Borrowers' Agent for such
Eurodollar Loans pursuant to Section 2.3 hereof shall thereupon, and until the
circumstances giving rise to such notice no longer exist (as notified by Agent
to Borrowers' Agent) be deemed a request for the making of Base Rate Loans. If
at any time Agent shall have determined in good faith (which determination
shall, in the absence of manifest error, be conclusive and binding upon
Borrowers) that any contingency has occurred which adversely affects the London
interbank market or that any Requirement of Law or any change in any existing
Requirement of Law or in the interpretation thereof, in any case adopted, issued
or effective after the date hereof, or other circumstance affecting any Lender
or the London interbank market makes the funding of the Eurodollar Loans
impracticable, Agent shall, as soon as practicable thereafter, give written or
telephonic notice of such determination to Borrowers' Agent and (i) the
Eurodollar Loans shall automatically be converted, as of the last day of each
Interest Period during which such determination is made and in each case in
respect of the principal amount of the Eurodollar Loans having an Interest
Period ending on such date, to Base Rate Loans and (ii) any request by
Borrowers' Agent for the Eurodollar Loans pursuant to Section 2.3 hereof shall
thereupon, and until the circumstances giving rise to such notice no longer
exist (as notified by Agent to Borrowers' Agent), be deemed a request for the
making of Base Rate Loans. Upon such circumstances no longer existing,
Borrowers' Agent may thereafter request Eurodollar Loans in accordance with the
terms hereof.
2.13. INDEMNITIES. Each Borrower hereby jointly and severally agrees
to indemnify Agent and each Lender and each Issuing Bank on demand against any
actual loss or expense (including but not limited to any loss or expense
sustained or incurred in liquidating or employing or redeploying deposits from
third parties acquired to effect or maintain any Loan or any portion thereof
other than loss of profit or margin) which any Lender or its branch or Affiliate
may sustain or incur as a consequence of (i) any default in payment or
prepayment of the principal amount of any Loan or any portion thereof or
interest accrued thereon, as and when due and payable (at the due date thereof,
by irrevocable notice of payment or prepayment, or otherwise), (ii) the effect
of the occurrence of any Event of Default upon any Loan, (iii) the payment or
prepayment of any principal amount of any Loan or the conversion of any portion
of any Eurodollar Loan to Base Rate Loans on any day other than the last day of
an Interest Period or the payment of any interest on such Loan, or portion
thereof, on a day other than an Interest Payment Date for the Loan or (iv) any
failure of any Borrower to accept or make a borrowing of the Loans or continue
or convert a Loan after delivery of a notice requesting a Loan under Section 2.3
or, as the case may be, a notice requesting a continuation or conversion under
Section 2.5(c) or any failure by any Borrower to satisfy any of the conditions
precedent to the making of Loans hereunder after it has requested the borrowing
thereof (other than any such conditions that are waived in accordance with the
provisions hereof). The determination of Agent of any amount payable under this
Section 2.13 shall, in the absence of manifest error, be conclusive and binding
upon each Borrower.
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2.14. FEES.
(a) STANDBY FEE. The Borrowers' Agent shall pay to the Agent, for
the account of the Lenders based on their respective Pro Rata Shares, a fee (the
"STANDBY FEE"), accruing at a per annum rate equal to one-eighth of one percent
(.125%) per annum on the daily amount by which the Revolving Credit Commitment
exceeds the sum of (i) the outstanding principal amount of the Loans, plus (ii)
the outstanding Reimbursement Obligations, plus (iii) the aggregate undrawn face
amount of all outstanding Letters of Credit, for the period commencing on the
Closing Date and ending on the Revolving Credit Termination Date, such fee being
payable quarterly, in arrears, commencing on the first day of the calendar
quarter next succeeding the Closing Date. Notwithstanding the foregoing, in the
event that any Lender fails to fund its Pro Rata Share of any Loan requested by
the Borrower which such Lender is obligated to fund under the terms of this
Agreement, (A) such Lender shall not be entitled to any Standby Fees with
respect to its Revolving Credit Commitment until such failure has been cured in
accordance with Section 2.8(b)(v)(B) and (B) until such time, the Standby Fee
shall accrue in favor of the Lenders which have funded their respective Pro Rata
Shares of such requested Loan, shall be allocated among such performing Lenders
ratably based upon their relative Revolving Credit Commitments, and shall be
calculated based upon the average amount by which the aggregate Revolving Credit
Commitments of such performing Lenders exceeds the sum of (I) the outstanding
principal amount of the Loans owing to such performing Lenders, plus (II) the
outstanding Reimbursement Obligations owing to such performing Lenders, plus
(III) the aggregate participation interests of such performing Lenders arising
pursuant to Section 3.1(e) with respect to undrawn and outstanding Letters of
Credit. The Standby Fee shall be calculated on the basis of the actual number of
days elapsed in a 360-day year.
(b) LETTER OF CREDIT FEE. In addition to any charges paid pursuant
to Section 3.1(g), the Borrowers' Agent shall pay to the Agent, for the account
of the Lenders based on their respective Pro Rata Shares, a fee (the "LETTER OF
CREDIT FEE") accruing at a per annum rate equal to one percent (1%) of the
undrawn face amount of each outstanding Letter of Credit and payable monthly, in
advance, on the date such Letter of Credit is issued and the first day of each
calendar month thereafter; provided, however, upon the occurrence of an Event of
Default and for so long thereafter as such Event of Default shall be continuing,
the rate at which the Letter of Credit Fee shall accrue and be payable shall be
equal to three percent (3%) per annum.
(c) EXTENSION FEE. Upon each extension of the Revolving Credit
Termination Date, as provided in Section 2.1(c), Borrowers' Agent agrees to pay
Agent on or before the existing Revolving Credit Termination Date for the
account of Lenders based on their respective Pro Rata Shares, an extension fee
equal to three-eighths of one percent (0.375%) of the Revolving Credit
Commitments.
(d) CALCULATION AND PAYMENT OF FEES. All such fees shall be payable
in addition to, and not in lieu of, interest, expense reimbursements,
indemnification and other Obligations. Fees shall be payable to the Agent in
immediately available funds. All fees shall be fully earned and nonrefundable
when paid. All fees specified or referred to in this Agreement due to the Agent,
any Issuing Bank or any Lender, including, without limitation, those referred to
in this Section
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2.14, shall bear interest at the interest rate specified in Section 2.4(c) upon
the occurrence and during the continuance of an Event of Default with respect to
the nonpayment thereof and shall constitute Obligations.
2.15. USURY. If the rate of interest payable by any Borrower under
this Agreement, any Note or the Loan Documents shall be or become usurious or
otherwise unlawful under laws applicable thereto, the interest rate shall be
reduced to the maximum lawful rate and any amount paid by such Borrower in
excess of the maximum lawful rate shall be considered a payment in reduction of
principal or, at the sole election of the Agent, shall be returned to such
Borrower.
2.16. ELIGIBLE PROPERTIES.
(a) "ELIGIBLE PROPERTY" means real estate which is and continues to
be at all times:
(i) wholly owned and operated by a Borrower pursuant to a
fee interest or leasehold interest; and
(ii) unencumbered except for a first mortgage lien granted in
connection with the Loans, Permitted Exceptions and
Customary Permitted Liens; and
(iii) leased pursuant to an Approved Lease to an Approved
Tenant who at all times maintains a Moody's or S&P
credit rating of Baa2 or BBB or better ("MINIMUM
REQUIRED TENANT CREDIT RATING") (unless at the time of
its acceptance as an Eligible Property the Lenders
unanimously agree otherwise, such agreement to be
evidenced by such acceptance).
(b) A Property must also be approved in all other respects by the
Requisite Lenders at the time of its acceptance as Eligible Property.
(c) In addition, no Property shall be accepted as an Eligible
Property unless the following are true, correct and accurate in all material
respects on the date of acceptance of such Property as an Eligible Property and
no Eligible Property shall continue to be an Eligible Property if a MAC occurs
in connection with any of the following which is not corrected within thirty
(30) days after written notice to Borrowers' Agent from Agent:
(i) Ownership and Condition of Property; Liens.
(a) TITLE. The Borrower owning or ground leasing such
Property has good record, marketable and indefeasible
fee simple absolute or leasehold title to such Property.
Such title shall be free and clear of all Liens and
other matters affecting title except for Permitted
Exceptions and Customary Permitted Liens.
(b) LEASES. Each of the Approved Leases and each Ground
Lease is in full force and effect and is a legally valid
and binding obligation of the Borrower who owns the
Property and the other parties thereto. None of the
Approved Leases or any
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Ground Lease has been amended, modified or terminated,
nor has there been any material change in or waiver of
any obligation contained in any such Lease or Ground
Lease nor any set-off or counterclaim asserted by any
tenant (or landlord) that in any such case could result
in a MAC. Such Borrower has not mortgaged, pledged or
otherwise encumbered any of the Approved Leases or
Ground Leases or its right to obtain rental, interest or
other payments under any Approved Lease. Rent has not
been collected more than 30 days in advance (except for
security deposits in an amount not in excess of one
month's installment of rent). No material default beyond
any applicable grace period or notice of termination
under any Approved Lease or Ground Lease is outstanding.
Such Borrower has performed all of its material repair
and maintenance obligations (if any) and, to the
knowledge and belief of such Borrower, each tenant under
each Approved Lease and each ground lessor under any
Ground Lease has performed all of its material repair,
maintenance or other obligations.
(c) SURVEYS. There have not been any encumbrances,
encroachments or other survey matters materially and
adversely affecting such Property after the date of the
most recent Survey of such Property furnished to Agent
that would result in a change to such Survey.
(d) OFF-SITE UTILITIES. All water, sewer, electric, gas,
telephone and other utilities are available to be
installed or installed to the property lines of such
Property and, except in the case of drainage facilities,
are connected to the Buildings located thereon with
valid permits and are adequate to service the Buildings
in material compliance with applicable law; and the
Buildings are properly and legally connected directly
to, and served exclusively by, public water and sewer
systems. No easements over land of others are required
for any such utilities, and no drainage of surface or
other water across land of others is required except in
either case as disclosed in the Title Policy or the
Surveys accepted by Agent.
(e) ACCESS; ETC. The streets abutting such Property are
public roads, to which the Property has direct access by
trucks and other motor vehicles and by foot, or are
private ways (with direct access by trucks and other
motor vehicles and by foot to public roads) to which the
Property has direct access without charge or liability
for maintenance or repair except as required in
connection with the payment of association or owner's
fees pursuant to recorded instruments. No easements over
land of others are required for such means of access and
egress except as disclosed in the Title Policy or
Surveys.
(f) INDEPENDENT BUILDINGS. The Buildings are fully
independent in all respects from any other buildings or
improvements not located on the Property including,
without limitation, in respect of structural integrity,
heating, ventilating and air conditioning, plumbing,
mechanical and other operating and mechanical systems,
all of which are connected directly to off-site
utilities located in recorded easements or public
streets or ways. The Buildings are located on lots which
are separately
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assessed for purposes of real estate tax assessment and
payment. The Buildings, all Building Service Equipment
and all paved or landscaped areas related to or used in
connection with the Buildings are located wholly within
the perimeter lines of the lot or lots on which the
Properties are located except any real property covered
by any easement benefiting the Property or as disclosed
in the Surveys.
(g) CONDITION OF BUILDING; NO ASBESTOS. There are no
material defects in the roof, foundation, structural
elements and masonry walls of the Buildings or their
heating, ventilating and air conditioning, electrical,
sprinkler, plumbing or other mechanical systems or their
Building Service Equipment; the Buildings are fully
sprinklered; and no asbestos is located in or on the
Buildings except as may be disclosed in the
Environmental Reports.
(h) BUILDING COMPLIANCE WITH LAW; PERMITS. The Buildings
as presently constructed and used do not materially
violate any applicable federal or state law or
governmental regulation, or any local ordinance, order
or regulation, including but not limited to laws,
regulations, or ordinances relating to zoning, building
use and occupancy, subdivision control, fire protection,
health and sanitation; zoning laws permit use of the
Buildings for their current use; there is a sufficient
number of parking spaces on the lot or lots on which the
Property is located or on any real property covered by
any easement benefiting the Property or to permit the
Buildings to be used under the zoning laws for their
current use; and all private ways providing access to
the Property are zoned in a manner which will permit
access to the Buildings over such ways by trucks and
other commercial and industrial vehicles. All permits
(collectively, the "PERMITS") required for the operation
and maintenance of the Property, including without
limitation, building permits, curb-cut permits, water
connection permits, sewer extension or connection
permits and other permits (if any) required under the
Federal Clean Air Act, as amended, the Federal Clean
Water Act, as amended (including, without limitation a
so-called "404 Permit"), and by state law or regulations
consistent with the requirements of said Acts, have been
validly issued by the appropriate Governmental Authority
and are now in full force and effect.
(i) NO REQUIRED REAL PROPERTY CONSENTS, PERMITS, ETC. No
Borrower has received any notices of, nor has any
knowledge of, any Permits, utility installations and
connections (including, without limitation, drainage
facilities, curb cuts and street openings), or private
consents required for the maintenance, operation,
servicing and use of any Property for its current use
which have not been granted, effected, or performed and
completed (as the case may be) or any fees or charges
therefor which have not been fully paid.
(j) SUITS; JUDGMENTS. There are no outstanding notices,
suits, orders, decrees or judgments relating to zoning,
building use and occupancy, subdivision control, fire
protection, health, sanitation, or other violations
affecting, against, or with respect to, any Property or
any part thereof.
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(k) INSURANCE. No Borrower has received any notices from
any insurer or its agent requiring performance of any
work with respect to any Property.
(l) REAL PROPERTY TAXES; SPECIAL ASSESSMENTS. There are
no unpaid or outstanding real estate or other taxes or
assessments on or against any Property or any part
thereof which are payable by any Borrower (except only
real estate taxes not yet due and payable). Borrowers'
Agent has delivered to Agent true and correct copies of
real estate tax bills for each Property for the past
three fiscal years. There are no betterment assessments
or other special assessments presently pending with
respect to any portion of any Property and no Borrower
has received any notice of any such special assessment
being contemplated.
(m) HISTORIC STATUS. No Building is a historic structure
or landmark, and no Property is within any historic
district pursuant to any federal, state or local law or
governmental regulations.
(n) EMINENT DOMAIN. There are no pending eminent domain
proceedings against the Property or any part thereof,
and, to the best of each Borrower's knowledge, no such
proceedings are presently threatened or contemplated by
any taking authority.
(o) COMPLIANCE WITH ENVIRONMENTAL LAWS. Except as
specifically set forth in the Environmental Reports for
such Property delivered to Lender and listed on Exhibit
K, to the knowledge of each Borrower each tenant is in
compliance with all applicable statutes, laws, rules,
regulations and orders of all Governmental Authorities
relating to environmental protection, pollution control
and Hazardous Materials and with respect to the conduct
of its business and the ownership of its properties,
except for such noncompliance which would not result in
imposition of Liens, fines, penalties, injunctive relief
or other civil or criminal liabilities or which, in the
aggregate, could not have a MAC.
(p) POLLUTION; HAZARDOUS MATERIALS. In connection with
the acquisition and ownership of its interests in such
Property, the Borrower who owns such Property has made
and will continue to make such inquiries, and has and
will continue to cause such testing, surveying,
inspection or other action, with respect to such
Property as is necessary or desirable in connection with
Hazardous Materials which might be present in the air,
soil, surface water or groundwater at such Property.
Except as set forth in the Environmental Reports listed
on Exhibit K, to the best of such Borrower's knowledge
there are no Hazardous Materials present in the air,
soil, surface water or groundwater at such Property and
no Hazardous Materials (except (i) Hazardous Materials
maintained in accordance with all Requirements of Law
and necessary for the business operations of any such
Property, including, without limitation, petroleum used
for heating oil and (ii) Hazardous Materials that are
not reasonably likely to result in a MAC in respect of
such Property or to have a
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material adverse effect on the value of such Property as
security for the Loans) are used in the operation of
such Property.
(q) MATERIALS PROVIDED TO AGENT. The Borrower who is the
owner of the applicable Property submitted for
acceptance as an Eligible Property has satisfied the
requirements of paragraphs (d), (e), (g) (unless
satisfied on the Closing Date), (h), (i), (j), (k), (l),
(m), (o), (p), (s), (t), and (u) of Section 5.1 in
respect of such Property.
(d) ELIGIBLE PROPERTY APPLICATION. Any Borrower may submit to Agent
and each Lender from time to time one or more Eligible Property Applications
which Agent and each Lender shall review as promptly as possible but nothing
contained in this Agreement shall be construed as to require any Lender to
approve any Eligible Property Application made by any Borrower. All Eligible
Property Applications are subject to the approval of the Requisite Lenders.
After the Closing Date any new Eligible Property must be owned directly by
Lexington or by a general or limited partnership of which Lexington is the sole
general partner in order to be approved as or remain an Eligible Property.
(e) APPROVED ELIGIBLE PROPERTIES. Subject to Section 2.16(a), the
Properties identified on Schedule 1 hereto are hereby approved as Eligible
Properties.
2.17. SUBSTITUTION AND RELEASE OF PROPERTY. The Borrowers shall be
entitled to obtain a release of or to substitute Eligible Properties provided
that (i) at the time of a Borrower's request to release or substitute an
Eligible Property and after giving effect to such release or substitution there
shall be no Excess Outstandings; (ii) such release or substitution is at no cost
to Agent or any Lender; (iii) no Default or Event of Default shall have occurred
and be continuing at the time of a Borrower's request to release or substitute
an Eligible Property or after giving effect to such release or substitution;
(iv) any substitute Property is accepted by the Requisite Lenders as an Eligible
Property and (v) after giving effect to such release or substitution Maximum
Availability is not less than $30,000,000 unless otherwise unanimously agreed to
by the Lenders. Agent and the Lenders agree that Agent shall execute,
acknowledge and deliver releases and terminations of all Security Documents
affecting any Eligible Property which is entitled to be released in accordance
with the terms hereof promptly (and in any case within 10 Business Days) after
the Borrowers' Agent's request therefor.
In addition, before any Property is accepted as an Eligible
Property, Borrowers must execute and deliver Security Documents for such
Property to the Agent for recording together with a Title Policy or a commitment
to issue such a Title Policy from the Title Insurance Company which Title Policy
must conform to the commitment and be delivered to the Agent not later than five
(5) Business Days thereafter indicating that the Agent's Security Documents are
in a first lien position in an amount not less than the amount of Loan proceeds
requested in connection with such Property.
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SECTION 3. LETTERS OF CREDIT
3. 1. LETTERS OF CREDIT. Subject to the terms and conditions set
forth in this Agreement, each Issuing Bank hereby severally agrees to issue for
the account of any Borrower one or more Letters of Credit having an aggregate
undrawn face amount of up to $5,000,000, subject to the following provisions:
(a) TYPES AND AMOUNTS. An Issuing Bank shall not have any obligation
to issue, amend or extend, and shall not issue, amend or extend, any Letter of
Credit at any time:
(i) if the aggregate Letter of Credit Obligations with respect
to such Issuing Bank, after giving effect to the issuance, amendment
or extension of the Letter of Credit requested hereunder, shall
exceed any limit imposed by law or regulation upon such Issuing
Bank;
(ii) if the Issuing Bank receives written notice from the
Agent at or before 1:00 p.m. (New York time) on the date of the
proposed issuance, amendment or extension of such Letter of Credit
that (A) immediately after giving effect to the issuance, amendment
or extension of such Letter of Credit, (1) the Letter of Credit
Obligations at such time would exceed $5,000,000 or (2) the
Revolving Credit Obligations at such time would exceed Maximum
Availability at such time, or (B) one or more of the conditions
precedent contained in Section 5.2 would not on such date be
satisfied, unless such conditions are thereafter or have previously
been satisfied and written notice of such satisfaction is given to
the Issuing Bank by the Agent (and an Issuing Bank shall not
otherwise be required to determine that, or take notice whether, the
conditions precedent set forth in Section 5.2, have been satisfied):
(iii) which has an expiration date later than the earlier of
(A) the date one (1) year after the date of issuance or (B) the
Business Day next preceding the scheduled Revolving Credit
Termination Date; or
(iv) which is in a currency other than Dollars.
(b) CONDITIONS. In addition to being subject to the satisfaction of
the conditions precedent contained in Sections 5.1 and 5.2, as applicable, the
obligation of an Issuing Bank to issue, amend or extend any Letter of Credit is
subject to the satisfaction in full of the following conditions:
(i) if the Issuing Bank so requests, the Borrower on whose
behalf the Letter of Credit has been issued and the Borrowers' Agent
shall have executed and delivered to such Issuing Bank and the Agent
a Letter of Credit Reimbursement Agreement and such other documents
and materials as may be required pursuant to the terms thereof;
provided, however, that such Letter of Credit Reimbursement
Agreement and other documents and agreements shall in no event
require delivery of any additional security by any Borrower or
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otherwise increase the obligations or reduce the rights of the
Borrowers hereunder or otherwise be inconsistent with such rights or
obligations; and
(ii) the terms of the proposed Letter of Credit shall
otherwise be satisfactory to the Issuing Bank in its reasonable
discretion.
(c) ISSUANCE OF LETTERS OF CREDIT. (i) The Borrowers' Agent shall
give Agent written notice to issue or cause to be issued a Letter of Credit not
later than 10:00 a.m. (New York time) on the fifth (5th) Business Day preceding
the requested date for issuance thereof under this Agreement, or such shorter
notice as may be acceptable to an Issuing Bank and the Agent. Such notice shall
be irrevocable unless and until such request is denied by the Agent and shall
include a Notice of Borrowing which complies with the requirements of Section
2.3(a) (modified as appropriate) and specify (A) that such Letter of Credit is
solely for the account of and the name of a specific Borrower, (B) the stated
amount of the Letter of Credit requested, (C) the effective date (which shall be
a Business Day) of issuance of such Letter of Credit, (D) the date on which such
Letter of Credit is to expire (which shall be a Business Day and no later than
the Business Day immediately preceding the then existing Revolving Credit
Termination Date), (E) the Person for whose benefit such Letter of Credit is to
be issued, (F) all other relevant terms of such Letter of Credit, (G) the
Revolving Credit Availability at such time, and (H) the amount of the then
outstanding Letter of Credit Obligations.
(ii) Each Issuing Bank shall give the Agent written notice, or
telephonic notice confirmed promptly thereafter in writing, of the issuance,
amendment or extension of a Letter of Credit (which notice the Agent shall
promptly transmit by telegram, facsimile transmission, or similar transmission
to each Lender).
(d) REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING BANKS. (i)
Notwithstanding any provisions to any Letter of Credit Reimbursement Agreement:
(A) provided that no Event of Default shall be continuing
hereunder and provided that there is then unfunded availability
hereunder, the Agent shall make Loan advances to the Issuing Bank to
repay amounts drawn under such Letter of Credit, or if either of the
foregoing conditions are not satisfied, the Borrowers' Agent shall
reimburse the Issuing Bank for amounts drawn under such Letter of
Credit, in Dollars, no later than the date (the "REIMBURSEMENT
DATE") which is the 10 Business Days after the Borrowers' Agent
receives written notice from the Issuing Bank that payment has been
made under such Letter of Credit by the Issuing Bank; and
(B) all Reimbursement Obligations with respect to any Letter
of Credit shall bear interest at the rate applicable to Base Rate
Loans in accordance with Section 2.4(a) from the date of the
relevant drawing under such Letter of Credit until the Reimbursement
Date and thereafter at the rate applicable to Base Rate Loans in
accordance with Section 2.4(c).
(ii) The Issuing Bank (if not the Agent) shall give the Agent
written notice, or telephonic notice confirmed promptly thereafter in writing,
of all drawings under a Letter of
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Credit and the payment (or the failure to pay when due) by the Borrowers' Agent
on account of a Reimbursement Obligation (which notice the Agent shall promptly
transmit by telegram, facsimile transmission or similar transmission to each
Lender).
(iii) No action taken or omitted in good faith by an Issuing
Bank under or in connection with any Letter of Credit shall put such Issuing
Bank under any resulting liability to any Lender, any Borrower or, so long as it
is not issued in violation of Section 3.1(a), relieve any Lender of its
obligations hereunder to such Issuing Bank. Solely as between the Issuing Banks
and the Lenders, in determining whether to pay under any Letter of Credit, the
respective Issuing Bank shall have no obligation to the Lenders other than to
confirm that any documents required to be delivered under a respective Letter of
Credit appear to have been delivered and that they appear on their face to
comply with the requirements of such Letter of Credit.
(e) PARTICIPATIONS. (i) Immediately upon issuance by an Issuing Bank
of any Letter of Credit in accordance with the procedures set forth in this
Section 3.1, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from that Issuing Bank, without recourse or warranty, an
undivided interest and participation in such Letter of Credit to the extent of
such Lender's Pro Rata Share, including, without limitation, all obligations of
the Borrower with respect thereto and any security therefor and guaranty
pertaining thereto.
(ii) If any Issuing Bank makes any payment under any Letter of
Credit and the Borrowers' Agent does not repay such amount to the Issuing Bank
on or before the Reimbursement Date (and such amount is not repaid with Loan
advances as provided above), the Issuing Bank shall promptly notify the Agent,
which shall promptly notify each Lender, and each Lender shall promptly and
unconditionally pay to the Agent for the account of such Issuing Bank, in
immediately available funds, the amount of such Lender's Pro Rata Share of such
payment (net of that portion of such payment, if any, made by such Lender in its
capacity as an Issuing Bank) , and the Agent shall promptly pay to the Issuing
Bank such amounts received by it, and any other amounts received by the Agent
for the Issuing Bank's account, pursuant to this Section 3.1(e). If a Lender
does not make its Pro Rata Share of the amount of such payment available to the
Agent, such Lender agrees to pay to the Agent for the account of the Issuing
Bank, forthwith on demand, such amount together with interest thereon, for the
first three (3) Business Days after the date such payment was first due at the
Federal Funds Rate, and thereafter at the interest rate then applicable to Base
Rate Loans in accordance with Section 2.4(a). The failure of any Lender to make
available to the Agent for the account of an Issuing Bank its Pro Rata Share of
any such payment shall neither relieve any other Lender of its obligation
hereunder to make available to the Agent for the account of such Issuing Bank
such other Lender's Pro Rata Share of any payment on the date such payment is to
be made nor increase the obligation of any other Lender to make such payment to
the Agent.
(iii) Whenever an Issuing Bank receives a payment on account
of a Reimbursement Obligation, including any interest thereon, as to which the
Agent has previously received payments from any Lender for the account of such
Issuing Bank pursuant to this Section 3.1(e), such Issuing Bank shall promptly
pay to the Agent and the Agent shall promptly pay to such Lender an amount equal
to such Lender's Pro Rata Share thereof. Each such payment shall
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be made by such Issuing Bank or the Agent, as the case may be, on the Business
Day on which such Person receives the funds paid to such Person pursuant to the
preceding sentence, if received prior to 11:00 a.m. (New York time) on such
Business Day, and otherwise on the next succeeding Business Day.
(iv) An Issuing Bank shall furnish to the Agent and each
Lender who makes a written request therefor, copies of any Letter of Credit,
Letter of Credit Reimbursement Agreement, and related amendment to which such
Issuing Bank is party and such other documentation as may be requested by Agent
or such Lender.
(v) The obligations of a Lender to make payments to the Agent
for the account of any Issuing Bank with respect to a Letter of Credit shall be
irrevocable, shall not be subject to any qualification or exception whatsoever
except willful misconduct or gross negligence of such Issuing Bank, and shall be
honored in accordance with this entire Section 3 (irrespective of the
satisfaction of the conditions described in Sections 5.1 and 5.2, as applicable)
under all circumstances, including, without limitation, any of the following
circumstances:
(A) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(B) the existence of any claim, setoff, defense or other right
which any Borrower may have at any time against a beneficiary named
in a Letter of Credit or any transferee of a beneficiary named in a
Letter of Credit (or any Person for whom any such transferee may be
acting), the Agent, the Issuing Bank, any Lender, or any other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between the
account party and beneficiary named in any Letter of Credit);
(C) any draft, certificate or any other document presented
under the Letter of Credit having been determined to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(E) any failure by the Issuing Bank to make any reports
required pursuant to Section 3.1(h) or the inaccuracy of any such
report; or
(F) the occurrence of any Default or Event of Default.
(f) PAYMENT OF REIMBURSEMENT OBLIGATIONS. (i) Unless paid with a
Loan advance hereunder, each Borrower unconditionally agrees, on a joint and
several basis, to pay to each Issuing Bank, in Dollars, the amount of all
Reimbursement Obligations, interest and other amounts payable to such Issuing
Bank under or in connection with the Letters of Credit when
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such amounts are due and payable, irrespective of any claim, setoff, defense or
other right which any Borrower may have at any time against any Issuing Bank or
any other Person.
(ii) In the event any payment by any Borrower received by an Issuing
Bank with respect to a Letter of Credit and distributed by the Agent to the
Lenders on account of their participations is thereafter set aside, avoided or
recovered from such Issuing Bank in connection with any receivership,
liquidation or bankruptcy proceeding, each Lender which received such
distribution shall, upon demand by such Issuing Bank, contribute such Lender's
Pro Rata Share of the amount set aside, avoided or recovered together with
interest at the rate required to be paid by such Issuing Bank upon the amount
required to be repaid by it.
(g) ISSUING BANK CHARGES. Borrowers' Agent shall pay to each Issuing
Bank, solely for its own account, the standard administrative charges assessed
by such Issuing Bank (not to exceed $400 each) in connection with the issuance,
administration, amendment and payment or cancellation of Letters of Credit and
such compensation in respect of such Letters of Credit for the Borrowers'
Agent's account as may be agreed upon by the Borrowers' Agent and such Issuing
Bank from time to time.
(h) ISSUING BANK REPORTING REQUIREMENTS. Each Issuing Bank shall, no
later than the tenth (10th) Business Day following the last day of each calendar
month, provide to the Agent, the Borrowers' Agent, and each Lender a schedule in
form and substance reasonably satisfactory to the Agent, setting forth the
aggregate Letter of Credit Obligations outstanding to it at the end of each
month and, to the extent not otherwise provided in accordance with the
provisions of Section 3.1(c)(ii), any information requested by the Agent or the
Borrowers' Agent relating to the date of issue, account party, amount,
expiration date and reference number of each Letter of Credit issued by it.
(i) INDEMNIFICATION; EXONERATION. (a) In addition to all other
amounts payable to an Issuing Bank, each Borrower hereby agrees to defend (by
counsel selected by Borrowers' Agent and reasonably acceptable to the Issuing
Bank), indemnify, and save the Agent, each Issuing Bank and each Lender harmless
from and against any and all claims, demands, liabilities, penalties, damages,
losses (other than loss of profits), costs, charges and expenses (including
reasonable attorneys' fees but excluding taxes) which the Agent, such Issuing
Bank or such Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit other than as a result of
the gross negligence or willful misconduct of the Issuing Bank, as determined by
a court of competent jurisdiction, or (B) the failure of the Issuing Bank
issuing a Letter of Credit to honor a drawing under such Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.
(b) As between each Borrower on the one hand and the Agent, the
Lenders and the Issuing Banks on the other hand, each Borrower assumes all risks
of the acts and omissions of, or misuse of Letters of Credit by, the respective
beneficiaries of the Letters of Credit. In furtherance and not in limitation of
the foregoing, subject to the provisions of the Letter of Credit Reimbursement
Agreements, the Issuing Banks and the Lenders shall not be responsible, for: (A)
the form,
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validity, legality, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of the Letters of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the
validity, legality or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (C) failure of the beneficiary of a
Letter of Credit to duly comply with conditions required in order to draw upon
such Letter of Credit; provided, however that with respect to any Letter of
Credit, the foregoing subclause (C) shall not relieve the Issuing Bank of any
liability it may have to any Borrower for any actual damages sustained by such
Borrower arising from a wrongful payment under such Letter of Credit made as a
result of the Issuing Bank's gross negligence or willful misconduct; (D) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(E) errors in interpretation of technical terms; (F) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof (other than anything for
which an Issuing Bank would be liable under clause (C)); (G) the misapplication
by the beneficiary of a Letter of Credit of the proceeds of any drawing under
such Letter of Credit.
(j) OBLIGATIONS SEVERAL. The obligations of each Issuing Bank and
each Lender under this entire Section 3 are several and not joint, and no
Issuing Bank or Lender shall be responsible for the obligation of any other
Issuing Bank or Lender to issue Letters of Credit or assume a participation
obligation in connection therewith (as applicable).
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and each Lender to enter into this
Agreement and to make the Loans herein provided for, each Borrower hereby
covenants, represents and warrants to Agent and each Lender that:
4.1. FINANCIAL CONDITION. The consolidated balance sheet of
Lexington as of December 31, 1995 and the related statements of income,
stockholders' equity and cash flows for the fiscal years ended on such dates,
certified by KPMG Peat Marwick, copies of which have heretofore been furnished
to Lender, are complete and correct and present fairly the financial condition
and performance of Lexington as at such dates and fiscal periods. The unaudited
consolidated balance sheet of Lexington as of 9/30/96 and the related unaudited
statements of income, for the six month period ended on 9/30/96 certified by a
Responsible Officer, copies of which have heretofore been furnished to Lender,
are complete and correct and present fairly the financial condition of Lexington
as at such date, and the stockholders' equity and cash flows for the six month
period then ended (subject to normal year-end audit adjustment). All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or Responsible Officer,
as the case may be, and as disclosed therein). Lexington does not have any
material Contingent Obligation, contingent liabilities or liability for taxes,
long-term leases or unusual forward or long-term commitment, which is not
reflected in the foregoing
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statements or in the notes thereto. Lexington has previously delivered to Lender
copies of its annual report on Form 10-K for the fiscal year ended 1995 filed
with the Commission.
4.2. NO MATERIAL ADVERSE EFFECT. Since the date of the most recent
financial statements delivered to Agent there has been no Material Adverse
Effect, and no event has occurred and no condition exists which could reasonably
be expected to have a Material Adverse Effect on any Borrower.
4.3. EXISTENCE; BORROWER'S COMPLIANCE WITH LAW. Lexington is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Maryland. Each Borrower is a duly organized and validly existing
in its jurisdiction of organization. Each (a) has full power and authority and
the legal right to own and lease its property and to conduct the business in
which it is currently engaged, (b) is duly qualified or licensed and is in good
standing under the laws of each jurisdiction where its ownership or lease of
property or the conduct of its business require such qualification, and (c) is
in compliance with all Requirements of Law except to the extent that the failure
to comply therewith is not reasonably likely to have, in the aggregate, a
Material Adverse Effect.
4.4. POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each Borrower
has the power and authority and the legal right to execute, deliver and perform
each of the Loan Documents and to borrow hereunder and has taken all necessary
action to authorize the borrowings hereunder, and the grant of the Liens
securing such borrowings, on the terms and conditions of the Loan Documents and
to authorize the execution, delivery and performance of each of the Loan
Documents. No consent or authorization of, filing with, or other act by or in
respect of any Governmental Authority is required to be made or obtained by the
Borrowers in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents. The
Agreement has been, and each Loan Document will be, duly executed and delivered
on behalf of each Borrower and this Agreement constitutes, and each other Loan
Document when executed and delivered will constitute, a legal, valid and binding
obligation of each Borrower enforceable against such Borrower in accordance with
its terms subject to the effect of bankruptcy, reorganization, insolvency and
similar laws and general principles of equity.
4.5. NO LEGAL BAR. The execution, delivery and performance of this
Agreement and the other Loan Documents, the borrowing hereunder and the use of
the proceeds thereof, will not violate any Requirement of Law or any Contractual
Obligation of any Borrower and will not result in, or require, the creation or
imposition of any Lien on any of its properties or revenues pursuant to any
Requirement of Law or Contractual Obligation other than the Liens for the
benefit of Lender expressly contemplated by this Agreement and the Security
Documents.
4.6. NO MATERIAL LITIGATION. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge and belief of each Borrower, threatened against any
Borrower or against any of its properties or revenues (a) with respect to this
Agreement or the other Loan Documents, the Leases, or any of the transactions
contemplated hereby or thereby, or (b) relating to the Properties, or the
ownership or the
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operation thereof or the conduct of business thereon as presently conducted,
which, in the case of (a) or (b), is reasonably likely to have, in the
aggregate, a Material Adverse Effect.
4.7. NO DEFAULT. No Default or Event of Default has occurred and is
continuing.
4.8. OWNERSHIP OF PROPERTY; LIENS.
(a) Each Borrower that is the owner of a Property has good record,
marketable and indefeasible Fee Interest or leasehold interest in each Property,
in such case free and clear of all Liens and other matters affecting title
except for Permitted Exceptions and Customary Permitted Liens, and such other
matters not reasonably likely to have, in the aggregate, a Material Adverse
Effect.
(b) To the best of Borrowers' knowledge, the Buildings located on
each Property are in good operating condition and repair, free of any material
structural or engineering defects known to any Borrower on the date hereof and
are suitable for their present uses, subject to such exceptions which are not
reasonably likely to have, in the aggregate, a Material Adverse Effect.
(c) To the best of Borrowers' knowledge, all water, sewer, gas,
electricity, telephone and other utilities serving each Property are supplied
directly to such Property by public utilities and enter such Property through
adjoining public streets or, if they pass through adjoining private land, do so
in accordance with valid public easements which inure to Borrower's benefit
subject to such exceptions which are not reasonably likely to have, in the
aggregate, a Material Adverse Effect. All of such utilities are presently
installed and operating and are in good and safe condition, subject to such
exceptions which are not reasonably likely to have, in the aggregate, a Material
Adverse Effect. All material assessments for public improvements that have been
made against the Properties have been paid or provided for, except that in the
case of any assessments that are payable in installments, all installments due
as of the date hereof have been paid or provided for, subject to such exceptions
which are not reasonably likely to have, in the aggregate, a Material Adverse
Effect.
(d) No Borrower has received notice of any pending, threatened or
contemplated condemnation proceeding or similar taking affecting any of the
Properties, or any portion thereof, or any sale or other disposition any of the
Properties or any portion thereof in lieu of condemnation or similar taking, in
each case, subject to such exceptions which are not reasonably likely to have,
in the aggregate, a Material Adverse Effect.
(e) All Permits from all Governmental Authorities having
jurisdiction over any Property or any portion thereof, the absence of which
could materially impair the use of any Property for the purposes for which it is
currently used have been issued and are in full force and effect, subject to
such exceptions which are not reasonably likely to have, in the aggregate, a
Material Adverse Effect. No Borrower has received or been informed by a third
party, of the receipt by it of any notice from any Governmental Authority having
jurisdiction over any of the Properties or any portion thereof or from any
insurance company or fire rating or similar board or organization threatening a
suspension, revocation, modification or cancellation of any Permit,
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subject to such exceptions which are not reasonably likely to have, in the
aggregate, a Material Adverse Effect.
(f) A true, correct and complete copy of each Approved Lease each of
which as of the Closing Date is listed in the rent roll attached as Exhibit I,
and a true, correct and complete copy of any Ground Lease has been delivered to
Agent. Each of the Approved Leases and each Ground Lease is in full force and
effect and is a legally valid and binding obligation of all parties thereto,
subject to such exceptions which are not reasonably likely to have, in the
aggregate, a Material Adverse Effect. No Borrower has mortgaged, pledged or
otherwise encumbered any of the Approved Leases or any Ground Lease except for
Liens permitted by Section 6.7. All rent and other sums and charges payable by
any tenant under each Approved Lease or by Borrower under any Ground Lease to
which it is a party are current, no notice of default or termination under any
such Approved Lease or Ground Lease is outstanding, no termination event or
condition or uncured default beyond applicable grace periods on the part of a
tenant exists under any Approved Lease or by Borrower under any Ground Lease,
and to the best of any Borrower's knowledge no event of default has occurred
which, with the giving of notice or the lapse of time or both, would constitute
such a default or termination event or condition or uncured default on the part
of the landlord or any tenant thereunder, subject to such exceptions which are
not reasonably likely to have, in the aggregate, a Material Adverse Effect. As
to all of the Approved Leases, the landlord has performed all of its material
repair and maintenance obligations (if any) and, to the best knowledge and
belief of each Borrower, each tenant has performed all of its material repair
and maintenance obligations, subject to such exceptions which are not reasonably
likely to have, in the aggregate, a Material Adverse Effect.
(g) There have not been any alterations to any of the Properties,
nor have there been any encumbrances, encroachments or other survey matters
affecting any Property, in each case, after the date of the most recent Survey
of such Property furnished to Leader, subject to such exceptions which are not
reasonably likely to have, in the aggregate, a Material Adverse Effect.
(h) A rent roll (which shall include a schedule of the aging of all
rent payments and indicate whether any tenant is no longer in occupancy) as of
the date set forth thereon with respect to all Approved Leases is accurately and
completely set forth in Exhibit I (all references herein to said Exhibit I shall
mean Exhibit I as the same shall be supplemented each fiscal quarter by a
certificate signed by a Responsible Officer). The Approved Leases reflected on
such rent roll constitute the sole and complete agreements and understandings
relating to leasing or licensing of space in the Buildings or otherwise at such
Properties. There are no occupancies, rights, privileges or licenses in or to
the Buildings or any other part of the Properties other than pursuant to the
Approved Leases reflected on the rent roll set forth in Exhibit I. Except as set
forth in Exhibit I, the Approved Leases reflected on the rent roll are in full
force and effect, in accordance with their respective terms, without any payment
default or any other material default thereunder, nor to the best of Borrower's
knowledge are there any defenses, counterclaims, offsets, concessions or rebates
available to any tenant thereunder, and the landlord has not given or made, or
received, any notice of default, or any claim, which remains uncured or
unsatisfied, with respect to any of the Leases and, to the best of each
Borrower's knowledge there is no basis for any such claim or notice of default
by any tenant which would have a Material Adverse
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Effect. The rent roll accurately and completely sets forth all rents payable by
and security, if any, deposited by tenants, no tenant having paid more than one
month's rent in advance. Except as set forth on Exhibit I, all tenant
improvements or work to be done, furnished or paid for by the landlord, or
credited or allowed to a tenant, for, or in connection with, the Buildings
pursuant to any Approved Lease has been completed and paid for or provided for
in a manner satisfactory to the Lender. No leasing, brokerage or like
commissions, fees or payments are due from any Borrower in respect of the
Approved Leases. Except as set forth on the rent roll, all tenants under all
Approved Leases are in occupancy and operating the premises covered by Approved
Leases within the permitted uses under such Approved Leases.
(i) Except as listed on Exhibit J (all references herein to said
Exhibit J shall mean Exhibit J as the same may be supplemented by or as
disclosed by additional documents and information delivered to Lender
hereunder), there are no Service Agreements relating to the operation and
maintenance of the Properties or any part thereof. To the best of each
Borrower's knowledge, there are no claims or any bases for claims in respect of
the Properties or their operation by any party to any Service Agreement.
(j) There are no material agreements pertaining to the Properties or
the operation or maintenance thereof other than as described in this Agreement
or the Title Policies or otherwise disclosed in writing to the Lender by a
Borrower; and no person or entity has any right or option to acquire any of the
Properties or any portion thereof or interest therein or lease any portion
thereof or additional portion thereof or provide services thereat except as set
forth on Exhibit H or Exhibit J or in the Leases.
4.9. TAXES. Each Borrower has filed or caused to be filed all tax
returns which to the best knowledge and belief of each Borrower are required to
be filed, and has paid or caused to be paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than Customary Permitted Liens and
those the amount or validity of which is currently being contested in good faith
by appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of each).
4.10. FEDERAL REGULATIONS. No Borrower is engaged and will not
engage, principally or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect. No part of the proceeds of the Loans
hereunder will be used for "purchasing" or "carrying" "margin stock" as so
defined or for any purpose which violates, or which would be inconsistent with,
the provisions of the Regulations of such Board of Governors. If requested by
Lender, each Borrower will furnish to Lender a statement in conformity with the
requirements of Federal Reserve Form U-1 referred to in said Regulation U to the
foregoing effect.
4.11. ERISA. No Borrower nor any ERISA Affiliate maintains or
contributes to any Plan or Multiemployer Plan other than those listed on Exhibit
Q hereto. Each such Plan which is
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intended to be qualified under Section 401(a) of the Internal Revenue Code as
currently in effect has been determined by the IRS to be so qualified, and each
trust related to any such Plan has been determined to be exempt from federal
income tax Section 501(a) of the Internal Revenue Code as currently in effect.
Except as disclosed in Exhibit Q, no Borrower or any of its Subsidiaries
maintains or contributes to any employee welfare benefit plan within the meaning
of Section 3(1) of ERISA. Each Borrower and its Subsidiaries are in compliance
in all material respects with the responsibilities, obligations and duties
imposed on it by ERISA, the Internal Revenue Code and regulations promulgated
thereunder with respect to all Plans. No Benefit Plan has incurred any
accumulated funding deficiency (as defined in Sections 302 (a) (2) of ERISA and
412 (a) of the Internal Revenue Code) whether or not waived. No Borrower nor any
ERISA Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan
(i) has engaged in an nonexempt prohibited transaction described in Sections 406
of ERISA or 4975 of the Internal Revenue Code or (ii) has taken or failed to
take any action which would constitute or result in a Termination Event. Neither
the Borrower nor any ERISA Affiliate is subject to any liability under Sections
4063, 4064, 4069, 4204 or 4212 (c) or ERISA. No Borrower nor any ERISA Affiliate
has incurred any liability to the PBGC which remains outstanding other than the
payment of premiums. Schedule B to the most recent annual report filed with the
IRS with respect to each Plan is complete and accurate in all material respects.
Since the date of each such Schedule B, there has been no material adverse
change in funding status or financial condition of the Plan relating to such
Schedule B. No Borrower nor any ERISA Affiliate has (i) failed to make a
required contribution or payment to a Multiemployer Plan or (ii) made a complete
or partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer
Plan. No Borrower nor any ERISA Affiliate has failed to make a required
installment or any other required payment under Section 412 of the Internal
Revenue Code on or before the due date for such installment or other payment. No
Borrower nor any ERISA Affiliate is required to provide security to a Plan under
Section 401 (a) (29) of the Internal Revenue Code due to a Benefit Plan
amendment that results in an increase in current liability for the plan year.
Except as disclosed on Exhibit R, no Borrower or any of its subsidiaries has, by
reason of the transactions contemplated hereby, any obligation to make any
payment to any employee pursuant to any Plan or existing contract or
arrangement.
4.12. STATUS AS REIT. Lexington has been organized in conformity
with the requirements for qualification as a real estate investment trust under
the Code and has met such requirements since 1993. Lexington is in a position to
qualify for its current fiscal year as a real estate investment trust under the
Code and its proposed methods of operation will enable it to so qualify.
4.13. INVESTMENT COMPANY ACT. No Borrower is an "investment company"
or a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
4.14. SUBSIDIARIES; OWNERSHIP OF CAPITAL STOCK AND PARTNERSHIP
INTERESTS.
(i) Exhibit K (A) contains a diagram indicating the corporate
structure of Lexington, each Borrower, and any other Person in
which Lexington or any
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Borrower holds a direct or indirect partnership, joint venture
or other equity interest indicating the percentage and nature
of such interest with respect to each Person included in such
diagram; and (B) accurately sets forth the correct legal name
of such Person, the jurisdiction of its incorporation or
organization and the jurisdictions in which it is qualified to
transact business as a foreign corporation, or otherwise.
(ii) Except where any failure or breach would not have a
Material Adverse Effect on the Borrowers, each Subsidiary: (A)
is a corporation or partnership, as indicated on Exhibit K,
duly organized, validly existing and, if applicable, in good
standing under the laws of the jurisdiction of its
organization, (B) is duly qualified to do business and, if
applicable, is in good standing under the laws of each
jurisdiction required to conduct its business as presently
conducted and (C) has all requisite power and authority to
own, operate and encumber its Property and to conduct its
business as presently conducted.
4.15. ABSENCE OF FINANCING STATEMENTS, ETC. There is no financing
statement, security agreement, chattel mortgage, real estate mortgage, equipment
lease, financing lease, option, encumbrance or other document filed or recorded
with any filing records, registry, or other public office, that purports to
cover, affect or give notice of any present or possible future lien or
encumbrance on, or security interest in, any Collateral, except those in favor
of the Lender or permitted by the Security Documents applicable to such
Collateral except as disclosed on Exhibit H.
4.16. POLLUTION; HAZARDOUS MATERIALS. In connection with the
acquisition and ownership of their interests in the Properties, the Borrowers
have made and will continue to make such inquiries, and has and will continue to
cause such testing, surveying, inspection or other action, with respect to the
Properties as is necessary or desirable in connection with Hazardous Materials
which might be present in the air, soil, surface water or groundwater at such
Property. Except as specifically set forth in the Environmental Reports listed
on Exhibit G (as amended or supplemented from time to time by additional
Environmental Reports with respect to future Eligible Properties or otherwise
amended or supplemented with the consent of the Lender) and except for such
exceptions which are not reasonably likely to have, in the aggregate, a Material
Adverse Effect, to the best of any Borrower's knowledge, there are no Hazardous
Materials present in the air, soil, surface water or groundwater at any Property
and no Hazardous Materials (except Hazardous Materials maintained in accordance
with all Requirements of Law and necessary for the business operations of any
such Property, including, without limitation, petroleum used for heating oil)
are used in the operation of any Property.
4.17. ARTICLES OF INCORPORATION, BY-LAWS, PARTNERSHIP AGREEMENT,
ETC. The copies of the Articles of Incorporation and By-Laws of Lexington and
the organizational documents of each Borrower which have been furnished to
Lender are true, correct and complete copies thereof as in effect on the date of
this Agreement.
4.18. DISCLOSURES. The financial statements referred to in Section
4.1 do not, nor does this Agreement, the other Loan Documents, or any other
written statement furnished by or on behalf
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of any Borrower to Lender in connection with the transactions contemplated
hereby or thereby, contain any untrue statement of a material fact or omit a
material fact necessary to make the statement contained therein or herein not
misleading.
SECTION 5. CONDITIONS PRECEDENT
5.1. CONDITIONS TO LOANS. The obligation of any Lender to make a
Loan hereunder on the Initial Funding Date or to accept any new property as an
Eligible Property is subject to the satisfaction of the following conditions
precedent on each such date (in addition to those set forth in Section 2.16 in
the case of a new Eligible Property):
(a) NOTE. On or before the Closing Date (and any subsequent Funding
Date in the case of a new Lender) such Lender shall have received a Note
executed by a Responsible Officer of each Borrower.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by each Borrower herein or in the other Loan Documents or which
are contained in any certificate, document or financial or other statement
furnished at any time under or in connection with any of the Loan Documents,
shall be true, correct and accurate on and as of the Funding Date for the Loan
as if made on and as of such date unless stated to relate to a specific earlier
date, in which case such representations and warranties shall have been true,
correct and complete in all material respects as of such earlier dates.
(c) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of Default
shall have occurred and be continuing on such date either before or after giving
effect to the Loan to be made on the Funding Date.
(d) LEGAL OPINION. Agent shall have received a favorable opinion of
counsel to each Borrower and local counsel admitted to practice law in each of
the states where any of the Eligible Properties are located indicating the
enforceability of the Loan Documents and stating that the taking of a mortgage
on property within such state will not constitute doing business in such
jurisdiction by any Lender in violation of applicable law, addressed to Agent as
of the Closing Date and covering such other matters as are customarily required
by Agent in similar transactions, all in form and substance reasonably
satisfactory to Agent.
(e) APPRAISALS. An Appraisal has been reviewed and approved by the
Requisite Lenders for each of the Eligible Properties.
(f) ORGANIZATIONAL DOCUMENTS. Agent shall have received certified
copies of the Articles of Incorporation and Bylaws of Lexington and a copy of
the Partnership Agreement and Certificate of Limited Partnership of each
Borrower and all resolutions of the Board of Directors of Lexington and a
certificate of partnership action of each Borrower approving this Agreement and
the other Loan Documents, and of all documents evidencing other necessary
corporate or partnership action and approvals, if any, of Governmental
Authorities with respect to this Agreement and the other Loan Documents and the
transactions contemplated hereby and thereby.
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(g) GOOD STANDING, TAX GOOD STANDING AND EXISTENCE. Agent shall have
received certificates of the appropriate governmental officials of the State of
Delaware and of any other state where Borrowers conduct business dated not more
than 30 days prior to the Closing Date, to the effect that each Borrower is
validly existing and is in good standing with respect to payment of franchise
and similar taxes and is duly qualified to transact business therein.
(h) LEASES. The Approved Leases and all Ground Leases have been
reviewed and approved by the Requisite Lenders in the case of the Approved
Leases and all Lenders in the case of any Ground Lease for each of the Eligible
Properties.
(i) PROPERTIES. Agent and each Lender shall have received such
information and access to each of the Properties as it shall have requested and
shall be satisfied with such information and access.
(j) EVIDENCE OF COMPLIANCE. Agent shall have received evidence, in
form and substance reasonably satisfactory to Agent and its counsel, that each
Borrower and each of the Properties are and have been at all relevant times in
all respects in material compliance with all applicable zoning, building and
other Requirements of Law and strict compliance with all environmental laws and
laws pertaining to the storage, handling and disposal of Hazardous Materials.
(k) INSURANCE. Agent shall have received binders or certificates
with respect to all insurance required to be maintained by each Borrower
pursuant to the Approved Leases or any of the Loan Documents.
(l) SECURITY DOCUMENTS AND INSTRUMENTS. Agent shall have received
(i) an original executed copy of a Mortgage (or an appropriate modification in
the case of an existing document) for each Eligible Property duly executed and
acknowledged by the appropriate Borrower and in proper form for recording; (ii)
an original executed copy of an Assignment of Leases (or an appropriate
modification in the case of an existing document) for each of the Eligible
Properties duly executed and acknowledged by the appropriate Borrower and in
proper form for recording; (iii) an Environmental Indemnity and Agreement (or an
appropriate modification in the case of an existing document) executed by the
Borrowers; (iv) Financing Statements duly executed by the appropriate Borrower
for each of the Eligible Properties to the extent not already fixed; (v) unless
waived or receipt is deferred by Agent, in proper form for filing, an original
copy of a Non-Disturbance Agreement for any Eligible Property which is Ground
Leased to a Borrower, duly executed and acknowledged by Agent, and each fee
owner of such Property and in proper form for recording; (vi) all other
documentation which Agent reasonably deems appropriate to obtain and maintain a
first priority perfected Lien, in favor of Agent on each Property, Approved
Lease, and all other relevant items of Collateral, each duly executed by
Borrower; (vii) unless waived or receipt is deferred by Agent, an original copy
of an estoppel certificate executed by each tenant in respect of each Approved
Lease in the form attached as Exhibit M to this Agreement and each fee owner of
any Property which is Ground Leased to a Borrower; (viii) all necessary consents
relating thereto from third parties so that the same shall be valid and not
result in any violation of any Contractual Obligation running in favor
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of such third party other than those which would not have a Material Adverse
Effect or result in a MAC; and (ix) all satisfactions of mortgages, termination
statements under the Uniform Commercial Code and other instruments releasing
Liens, security interests and other encumbrances as may be necessary or
desirable in connection with the foregoing or Title Policies evidencing the
satisfaction or discharge of such Liens, security interests and other
encumbrances; and all of the foregoing shall be in full force and effect and
shall grant or create the rights, powers, priorities, remedies and benefits
contemplated herein or therein, as the case may be.
(m) TITLE REPORTS, SURVEYS AND UCC SEARCH. Agent shall have received
and approved (i) one or more Title Policies in an aggregate amount equal to the
principal amount of the Loans funded on the Funding Date and a Survey in respect
of each Property, and (ii) in the case of the initial Loans only, a UCC Search
in the jurisdiction where each Borrower has its principal place of business and
in the appropriate recording office in each jurisdiction where any Property is
located that constitutes Collateral for the Loan.
(n) NO MATERIAL ADVERSE EFFECT. No Material Adverse Effect shall
have occurred.
(o) SOLVENCY OF EACH BORROWER. Both after and immediately before the
making of the Loan on any Funding Date, each Borrower shall be Solvent.
(p) COMPENSATION. All obligations of Borrowers to pay fees and
provide compensation and reimbursement of costs and expenses to Agent or their
designees as of the Funding Date hereunder or otherwise in connection with the
financing contemplated hereby shall have been satisfied.
(q) LEGALITY OF LOANS. The making of the Loans hereunder by each
Lender and the acquisition of the Notes shall be permitted as of the Funding
Date by all applicable Requirements of Law and shall not subject any Lender to
any penalty or other onerous condition in or pursuant to any such Requirement of
Law or result in a Material Adverse Effect.
(r) NOTICE OF BORROWING. Agent shall have received a Notice of
Borrowing, at least five or more days prior to the Funding Date, and each other
certificate or document required under Section 2.3 with appropriate insertions
and attachments reasonably satisfactory in form and substance to Agent and its
counsel, executed by a Responsible Officer of Borrowers' Agent.
(s) ENVIRONMENTAL REPORTS. An environmental report, on each Eligible
Property shall have been received and approved by the Requisite Lenders. Such
reports shall consist of a phase I environmental audit from a company reasonably
acceptable to Agent and containing results acceptable to the Requisite Lenders
and, if so recommended in such audits or reasonably requested by Agent, phase II
and other additional audits. In each case, Agent and the Requisite Lenders shall
have received evidence satisfactory to it that all material recommendations
contained in any such report or audit shall have been implemented.
(t) MAXIMUM AVAILABILITY. After the making of the Loans on any
Funding Date, the Outstanding Amount shall not exceed the Maximum Availability.
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(u) REPLACEMENT RESERVES. Each Borrower who is the owner of Property
and who is required to maintain cash reserves on deposit with the Agent in
accordance with Section 6.17 has established such an account with the Agent.
5.2. CONDITIONS PRECEDENT TO ALL SUBSEQUENT LOANS. The obligation of
each Lender to make any Loan requested to be made by it on any date after the
Initial Funding Date is subject to the following conditions precedent as of each
such date:
(a) REPRESENTATIONS AND WARRANTIES. As of such date, both before and
after giving effect to the Loans to be made on such date, all of the
representations and warranties of each Borrower contained in this Loan Agreement
and in any other Loan Document (other than representations and warranties which
expressly speak as of a different date) shall be true and correct in all
material respects.
(b) NO DEFAULTS. No Default or Event of Default shall have occurred
and be continuing or would result from the making of the requested Loan.
(c) NO LEGAL IMPEDIMENTS. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and no Lender shall have received
notice that, in the reasonable judgment of such Lender, litigation is pending or
threatened which is likely to, enjoin, prohibit or restrain, or impose or result
in the imposition of any material adverse condition upon, such Lender's making
of the requested Loan.
(d) NO MATERIAL ADVERSE EFFECT. No Borrower shall have received
written notice that an event has occurred since the date of this Agreement which
has had and continues to have, or is reasonably likely to have, a Material
Adverse Effect.
(e) COMPENSATION. All obligations of Borrowers to pay fees and
provide compensation and reimbursement of costs and expenses to Agent or their
designees as of the Funding Date hereunder or otherwise in connection with the
financing contemplated hereby shall have been satisfied.
(f) MAXIMUM AVAILABILITY. After the making of the Loans on any
Funding Date, the aggregate Outstanding Amount shall not exceed the Maximum
Availability.
Each submission of a Notice of Borrowing or a Notice of Conversion/Continuation
with respect to any Loan, each acceptance by a Borrower of the proceeds of each
Loan made, converted or continued hereunder, shall constitute a representation
and warranty by each Borrower as of the date of funding in respect of such Loan,
the date of conversion or continuation, that all the conditions contained in
this Section 5.2 have been satisfied or waived in accordance with Section 10.2
and that no MAC has occurred and is continuing as of the relevant date in
respect of the facts, circumstances or laws relevant to the conditions precedent
set forth in paragraphs (d), (e), (f), (g)-(m), (o), (s), and (u) of Section
5.1.
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SECTION 6. AFFIRMATIVE COVENANTS
Each Borrower hereby agrees that, so long as the Revolving Credit
Commitment remains in effect, any Note remains outstanding and unpaid or any
other amount is owing to any Lender, such Borrower shall:
6.1. FINANCIAL STATEMENTS. Furnish to Agent or cause Borrowers'
Agent to furnish to Agent:
(a) ANNUAL. As soon as available, but in any event within ninety
(90) days after the end of each fiscal year (A) audited consolidated financial
statements of Lexington consisting of (i) a balance sheet; (ii) an income
statement; (iii) a statement of cash flow; (iv) a statement of retained
earnings; and (v) changes in stockholders' equity, for such year, setting forth
in each case in comparative form the figures for the previous year, certified
without a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by KPMG Peat Marwick, L.L.P. or other
independent certified public accountants of nationally recognized standing; and
(B) unaudited consolidating financial statements of Lexington certified by a
Responsible Officer of Lexington; and
(b) QUARTERLY. As soon as available, but in any event not later than
sixty (60) days after the end of each fiscal quarter of Lexington, copies of
each of the following for Lexington: (i) an unaudited balance sheet prepared on
a consolidated and consolidating basis as at the end of each such quarter and
the related unaudited statements of income for the fiscal quarter; (ii)
stockholders' equity and cash flows for such quarterly period, and the portion
of the fiscal year through such date; (iii) operating statements and a rent roll
certified by Lexington (including a schedule of the aging of all rent payments
and indicating whether any tenant is no longer in occupancy) for each Eligible
Property for such quarterly period, the portion of the fiscal year through such
date, setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer of such entity (subject to
normal year-end audit adjustments); all such financial statements referred to in
Section 5.1 (a) and (b) to be complete and correct in all material respects and
be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein (except as approved by
such accountants or officer, as the case may be, and disclosed therein).
6.2. CERTIFICATES; OTHER INFORMATION. Furnish to Agent or cause
Borrowers' Agent to furnish to each Agent:
(a) concurrently with the delivery of Lexington's financial
statements referred to in Section 6.1(a) and (b) above, (i) a certificate of a
Responsible Officer stating that, has obtained no knowledge of any Default or
Event of Default except as specified in such certificate, (ii) a Certificate of
Covenant Compliance in the form of Exhibit L and (iii) a Certificate of Recourse
Indebtedness in the form of Exhibit O;
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(b) with each Notice of Borrowing and within sixty (60) days of the
end of each calendar quarter after the Initial Funding Date, a Certificate of
Eligible Properties and Maximum Availability as at the end of such quarter
signed by a Responsible Officer;
(c) within ten days of receipt thereof, copies of any financial
statements or other information furnished to such Borrower pursuant to the
Approved Leases;
(d) on an annual basis, a copy of a one year projected operating
statement of Lexington including a projected operating budget and cash flow of
Lexington;
(e) promptly after the same are sent, copies of all financial
statements and reports which Lexington sends to its holders of Common Shares or
other equity securities, and promptly after the same are filed by Lexington,
copies of all financial statements and reports which Lexington may make to, or
file with, the NYSE and the Commission or any successor or analogous
Governmental Authority;
(f) no later than thirty (30) days after the same are filed with the
Internal Revenue Service ("IRS") and other applicable taxing authorities, copies
of its income tax returns and all correspondence to or from the IRS;
(g) Within ten (10) days after the filing thereof, evidence
indicating that Lexington has maintained its status as a real estate investment
trust ("REIT") under the applicable provisions of the Code such evidence to
consist of annual tax returns certified by KPMG Peat Marwick or such other
independent public accounting firm as is reasonably acceptable to Agent; and
(h) promptly thereafter, such additional financial and other
information respecting the financial or other condition of any Borrower or the
status or condition of the Properties or the operation thereof which such
Borrower is entitled to or can otherwise reasonably obtain and as Agent may from
time to time reasonably request.
6.3. PAYMENT OF OBLIGATIONS. Discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
Indebtedness and other obligations of whatever nature except when the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings, and reserves in conformity with GAAP with respect thereto have been
provided on the books of such Borrower or where the failure to do so does not
violate Section 8.1(e).
6.4. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Continue to
engage in business of the same general type as now conducted by it, and
preserve, renew and keep in full force and effect its existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business; and comply with all Contractual
Obligations and Requirements of Law except to the extent that the failure to
comply therewith could not, in the aggregate, have a Material Adverse Effect.
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6.5. LEASES. (a) Maintain the Approved Leases and any Ground Lease
in full force and effect and enforce the obligations of the tenants under the
Leases and the landlord under each Ground Lease, in a timely manner and obtain
the consent of the Requisite Lender's in connection with any material change in
or waiver of any obligation of any tenant or landlord, contained in, or any
right or remedy of any Borrower under any Approved Lease or Ground Lease (as
appropriate) (other than a waiver in connection with an Approved Lease or Ground
Lease which alone or together with any other such waiver will not have a
Material Adverse Effect), including, without limitation, any renewal (other than
in accordance with the terms of the Leases or any Ground Lease), any material
amendment or modification or termination thereof; and (b) give notice to Agent,
together with a copy thereof, of each renewal, amendment, modification or
termination of the Approved Leases or any Ground Lease.
6.6. MAINTENANCE OF PROPERTY, INSURANCE. Keep or cause the tenants
to keep all Property in good working order and condition; maintain or cause the
tenants of its Properties to maintain with financially sound and reputable
insurance companies insurance on all its Property on terms and from insurers
reasonably satisfactory to Agent; and furnish to Agent, upon written request,
full information as to the insurance carried.
6.7. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Keep
proper books of record and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of Agent and any Lender to visit and inspect any of its
properties for any purpose including obtaining Appraisals or performing
environmental inspections and examine and make abstracts from any of its books
and records at any reasonable time and on reasonable notice and as often as may
reasonably be desired (subject to applicable provisions of any lease affecting
any Property), and to discuss the business, operations, properties, prospects
and financial and other condition of such Borrower with officers and employees
of such Borrower and with its independent certified public accountants.
6.8. NOTICES. Promptly, and in any event within ten Business Days
after an officer of any Borrower obtains knowledge thereof (except as set forth
below) give notice to Agent:
(a) of the occurrence of any Default or Event of Default;
(b) of (i) any default or event of default or termination under any
(a) Lease or any other Contractual Obligation of or in favor of any Borrower
which is reasonably likely to have a Material Adverse Effect or (b) Ground Lease
as to which any Borrower has received notice from the ground lessor and which
remains uncured and (ii) any litigation, investigation or proceeding which may
exist at any time between any Borrower or any tenant and any Governmental
Authority or other Person, which if adversely determined is reasonably likely to
have a Material Adverse Effect;
(c) of any litigation or proceeding affecting any Borrower in which
the amount involved which is not covered by insurance is $100,000 or more or in
which injunctive or similar relief is sought;
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(d) at least twenty (20) days prior to the effective date of any sale,
transfer or refinancing or other transaction or event which may give rise to Net
Property Proceeds to the extent it applies to any of the Property;
(e) of the occurrence or existence of any event or condition which would
cause any of the representations and warranties set forth in Section 4.8 to be
untrue.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action a Borrower proposes to take with respect thereto.
6.9. APPRAISALS; ENVIRONMENTAL REPORTS. From time to time during the
term of this Agreement, Agent may, in its sole discretion, order an Appraisal of
one or more of the Eligible Properties as specified in such request (in addition
to the Appraisals delivered pursuant to Section 5.1). Any such Appraisal shall
be at the expense of the Borrowers if ordered (i) in connection with the
syndication of this Agreement unless Agent has syndicated at least $35,000,000
of the Revolving Credit Commitment as of the Closing Date, (ii) at the time of
an Extension Request, or (iii) if an Event of Default has occurred. From time to
time during the term of this Agreement Agent may also, in its sole discretion,
order an updated environmental report for one or more of the Eligible
Properties. Any such updated environmental reports shall be at the expense of
the Borrowers if ordered (i) in connection with the syndication of this
Agreement unless Agent has syndicated at least $35,000,000 of the Revolving
Credit Commitment as of the Closing Date, (ii) at the time of an Extension
Request, or (iii) if an Event of Default has occurred.
6.10. REIT REQUIREMENTS. Cause Lexington to operate its business at all
times so as to satisfy or be deemed to have satisfied all requirements necessary
to qualify as a real estate investment trust under the Code. Lexington shall
maintain adequate records so as to comply with all record-keeping requirements
relating to the qualification of Lexington as a real estate investment trust as
required by the Code and applicable regulations of the Department of the
Treasury promulgated thereunder and will properly prepare and timely file with
the IRS all returns and reports required thereby. Lexington shall request from
its shareholders all shareholder information required by the Code and applicable
regulations of the Department of Treasury promulgated thereunder.
6.11. INDEMNIFICATION. On a joint and several basis, indemnify, defend
(with counsel reasonably acceptable to the indemnified party) and hold Agent and
each Lender and Issuing Bank, and the directors, officers, shareholders,
employees and agents of Agent and each Lender and Issuing Bank harmless from any
claims (including without limitation third party claims for personal injury or
real or personal property damage), actions, administrative proceedings,
judgments, damages, punitive damages, penalties, fines, reasonable costs,
liabilities (including sums paid in settlements of claims), interest or losses,
including reasonable attorneys' fees, consultant fees and expert fees, that
arise directly or indirectly from or in connection with the presence, suspected
presence, release or suspected release of any Hazardous Material in the air,
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soil, surface water or groundwater at or from the real property or any portion
thereof with respect to a Property, or any other real property in which any
Borrower has any interest (all of the foregoing real property shall be referred
to collectively as the "REAL PROPERTY"). Without limiting the generality of the
foregoing, the indemnification provided by this Section shall specifically cover
(i) costs, including capital, operating and maintenance costs, incurred in
connection with any investigation or monitoring of site conditions or any
clean-up, remedial, removal or restoration work required or performed by any
federal, state or local governmental agency or political subdivision or
performed by any non-governmental Person, including any tenant of a Property,
because of the presence, suspected presence, release or suspected release of
Hazardous Material in the air, soil, surface water or groundwater at or from the
Real Property; and (ii) costs incurred in connection with (A) Hazardous Material
present or suspected to be present in the air, soil, surface water or
groundwater at the Real Property before the date of this Agreement, or (B)
Hazardous Material that migrates, flows, percolates, diffuses or in any way
moves onto or under or from the Real Property, or (C) Hazardous Material present
at the Real Property as a result of any release, discharge, disposal, dumping,
spilling or leaking (accidental or otherwise) (any of the foregoing, a
"Release") onto or from the Property before or after the date of this Agreement
by any Person; provided, however, that the indemnification provided by this
Section shall not include claims to the extent arising from the gross negligence
or willful misconduct of any party seeking indemnification. The indemnification
provided in this Section 6.11 shall survive the termination of this Agreement;
provided, however, that no Borrower shall have any liability under the foregoing
indemnity in connection with any Release of any Hazardous Materials on, under or
about any Property which occurs after the date of any transfer of the Property
to Agent and/or any of the Lenders, or its or their designee or any other
Person(s), by foreclosure deed-in-lieu thereof or otherwise which was not
present on the Property prior to such date.
6.12. CHANGES IN GAAP. In the event of a change in GAAP which would
cause the financial covenants set forth in Section 7.1 to provide less
protection to any Lender or be more restrictive for the Borrowers than presently
provided for hereunder, cause such financial covenants to be reset, in good
faith, by Agent and the Borrowers to maintain the protection to each Lender
equivalent to that in place prior to such change and Agent, each Lender and each
Borrower shall execute one or more amendments to this Agreement to effect such
reset.
6.13. TREATMENT UNDER DISCLOSURE DOCUMENTS. Cause Lexington to disclose
and otherwise treat the Loans as secured Indebtedness to the extent appropriate
in all documents filed with the Commission or other public filings.
6.14. ACCESS TO COLLATERAL. With respect to each location at which the
Collateral is now or hereafter located, obtain such lien waivers, estoppel
certificates or subordination agreements as Agent may reasonably require to
insure the priority of its security interest in, and its ability to take
possession of, the Collateral situated at such locations.
6.15. NYSE LISTING. Cause Lexington at all times to keep its common
stock duly listed on the NYSE or a major national United States securities
exchange and to file all reports on a
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timely basis required by the NYSE or such other national exchange as Lexington's
stock may be traded.
6.16. OBLIGATIONS IN EXCESS OF MAXIMUM AVAILABILITY. Except as otherwise
provided in Section 2.6(d), if at any time the Outstanding Amount shall exceed
the then Maximum Availability (which event, notwithstanding the provisions of
this Section, shall be a Default), cure the same within fifteen (15) Business
Days of the date Agent notifies Borrowers' Agent of same.
6.17. REPLACEMENT RESERVE. If requested by Agent at the time a Property
is accepted as an Eligible Property maintain in effect a reasonable cash reserve
on deposit with Agent for any Property whose structural or engineering report
indicates the need for capital repairs or replacements, which reserve shall
constitute additional Collateral for the Loans and the balance thereof shall be
made available to any Borrower to pay for the cost of any such capital repairs,
improvements or replacements to the Property.
6.18. MANAGEMENT OF BORROWER AND PROPERTY. Insure that the management of
each Borrower shall be self-directed and self-administered. Notwithstanding the
foregoing, all contracts between any Borrower and any third party pertaining to
any of the Property shall provide that Lender may terminate same immediately
upon foreclosure or its acceptance of a deed in lieu of foreclosure.
6.19. SUBORDINATION OF PAYABLES TO AFFILIATES. After the occurrence and
continuance of a Default or Event of Default, make no payments on any account
payable or other debt owed by any Borrower to any Affiliate or Subsidiary and
all such amounts shall be fully subordinated to the Loans pursuant to the terms
of an agreement in form and substance satisfactory to the Lender.
6.20. USE OF LOAN PROCEEDS FOR CONSTRUCTION. Prior to the commencement
of any new construction project or the renovation or expansion of any Eligible
Property, in either case, with proceeds of the Loan, cause Borrowers' Agent to
submit to Agent the proposed construction budget for approval which shall not be
unreasonably withheld or delayed, accompanied by the applicable plans and
specifications, construction contracts, architect's contract, other major
contracts, bonds (if required), licenses and permits, certifications from
Borrowers' Agents architects and engineers, and such other supporting
documentation as Agent may reasonably require.
Updated construction budgets for such construction project shall be
provided to Agent on a quarterly basis. Lender reserves the right to hire a
construction consultant at Borrowers' expense to review all such construction
budgets.
6.21. ERISA NOTICES. Deliver or cause to be delivered to the Agent, at
such Borrower's expense, the following information and notices as soon as
reasonably possible, and in any event:
(a) within thirty (30) Business Days after Borrower or any ERISA
Affiliate knows or has reason to know that a Termination Event has occurred, a
written statement of the chief financial
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officer of the Borrower describing such Termination Event and the action, if
any, which such 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, DOL or PBGC with respect thereto;
(b) within thirty (30) Business Days after the Borrower knows or has
reason to know that a prohibited transaction (defined in Sections 406 of ERISA
and Section 4975 of Code) has occurred, a statement of the chief financial
officer of the Borrower describing such transaction and the action which the
Borrower or any ERISA Affiliate has taken, is taking or proposes to take with
respect thereto;
(c) within thirty (30) Business Days after the filing of the same with
the DOL, IRS or PBGC, copies of each annual report (form 5500 series), including
Schedule B thereto, filed with respect to each Plan;
(d) within thirty (30) Business Days after receipt by such Borrower or
any ERISA Affiliate of each actuarial report for any Plan or Multiemployer Plan
and each annual report for any Multiemployer Plan, copies of each such report;
(e) within thirty (30) Business Days after the filing of the same with
the IRS, a copy of each funding waiver request filed with respect to any Plan
and all communications received by such Borrower or any ERISA Affiliate with
respect to such request;
(f) within thirty (30) Business Days after the occurrence any material
increase in the benefits of any existing Plan or Multiemployer Plan or the
establishment of any new Plan or the commencement of contributions to any Plan
or Multiemployer Plan to which such Borrower or any ERISA Affiliate to which
such Borrower or any ERISA Affiliate was not previously contributing,
notification of such increase, establishment or commencement;
(g) within thirty (30) Business Days after such Borrower or any ERISA
Affiliate receives notice of the PBGC's intention to terminate a Plan or to have
a trustee appointed to administer a Plan, copies of each such notice;
(h) within thirty (30) Business Days after such Borrower or any of its
Subsidiaries receives notice of any unfavorable determination letter from the
IRS regarding the qualification of a Plan under Section 401(a) of the Code,
copies of each such letter;
(i) within thirty (30) Business Days after such Borrower or any ERISA
Affiliate receives notice from a Multiemployer Plan regarding the imposition of
withdrawal liability, copies of each such notice;
(j) within thirty (30) Business Days after such Borrower or any ERISA
Affiliate fails to make a required installment or any other required payment
under Section 412 of Code on or before the due date for such installment or
payment, a notification of such failure; and
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(k) within thirty (30) Business Days after such Borrower or any ERISA
Affiliate knows or has reason to know (i) a Multiemployer Plan has been
terminated, (ii) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (iii) the PBGC has instituted or
will institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, notification of such termination, intention to terminate or
institution of proceedings.
6.22 ERISA COMPLIANCE. Cause, and shall cause each of its Subsidiaries
and ERISA Affiliates to, establish, maintain and operate all Plans to comply in
all material respects with the provisions of ERISA, the Code, all other
applicable laws, and the regulations and interpretations thereunder and the
respective requirements of the governing documents for such Plans.
6.23 PAYMENT OF TAXES AND CLAIMS. (a) Pay or cause to be paid, and cause
each of its Subsidiaries to pay or cause to be paid, (i) all taxes, assessments
and other governmental charges imposed upon it or on any of its property or
assets or in respect of any of its franchises, licenses, receipts, sales, use,
payroll, employment, business, income or property before any penalty or interest
accrues thereon, and (ii) all claims (including, without limitation, claims for
labor, services, materials and supplies) for sums which have become due and
payable and which by law have or may become a Lien (other than a Lien permitted
by Section 7.6 or a Customary Permitted Lien); provided, however, that no such
taxes, assessments, fees and governmental charges referred to in clause (i)
above or claims referred to in clause (ii) above need be paid if being contested
in good faith by appropriate proceedings diligently instituted and conducted and
if such reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor.
6.24 INTER-BORROWER ADVANCES OF LOAN PROCEEDS. Cause all transfers of
Loan proceeds from one Borrower to another or any Affiliate thereof to be
documented and treated for all purposes by the lending and receiving Borrower as
an intercorporate loan transaction.
SECTION 7. NEGATIVE COVENANTS
Each Borrower hereby agrees that, so long as the Revolving Credit
Commitment remains in effect or any Note remains outstanding and unpaid or any
other amount is owing to any Lender hereunder or under any other Loan Document,
such Borrower shall not directly or indirectly:
7.1. FINANCIAL COVENANTS. Fail to comply with the covenants set forth
in this Section 7.1 on a consolidated basis as of the end of each fiscal
quarter.
(a) MINIMUM ESTIMATED NET WORTH OF BORROWERS. Suffer or permit the
Minimum Estimated Net Worth of the Borrowers on a consolidated basis to be less
than the aggregate of (i) $100,000,000, plus (ii) 75% of the Net Securities
Proceeds of all issues of any Common Shares, Preferred Shares or other equity
securities by Lexington in one or more transactions received after the date
hereof.
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(b) DEBT SERVICE COVERAGE. Suffer or permit the ratio of EBIDA for any
fiscal quarter to the debt service (including principal and interest on the
Loans) on all Indebtedness for such quarter to be less than 1.3 to 1.
(c) MAXIMUM TOTAL DEBT TO ESTIMATED MARKET VALUE. Suffer or permit total
debt or guarantees in respect of money borrowed to Estimated Market Value to
exceed 60%. Estimated Market Value shall be defined as EBIDA for the Borrowers
on a consolidated basis based on the most recent four fiscal quarters (a
"MEASURING PERIOD") divided by the greater of (i) 10% or (ii) the 10 year
Treasury bond rate on the date of calculation plus 2%. It is acknowledged and
agreed that for purposes of calculating EBIDA during any Measuring Period in
which a Borrower has acquired a property, EBIDA for such Measuring Period shall
include EBIDA from such property for the entire Measuring Period including the
portion of such Measuring Period prior to the date of acquisition of such
property by the applicable Borrower. EBIDA for any property for which four (4)
full quarters of earnings information is not available or is not indicative of
the current operations of such property (including any newly constructed
property or other property in the lease-up period) shall be calculated on (i) a
pro-forma basis based upon EBIDA for the most recent quarter or portion thereof
in the case of an existing property or (ii) on a pro-forma basis reasonably
acceptable to Agent in the case of a situation involving a sale/leaseback or new
construction.
(d) MINIMUM UNENCUMBERED LIQUIDITY. (i) Suffer or permit the sum of
cash, Cash Equivalents and unfunded availability under the Revolving Credit
Commitment to be less than $5,000,000 or (ii) suffer or permit the sum of cash
and Cash Equivalents to be less than the positive difference, if any, between
the then Outstanding Amount and the projected Maximum Availability as reasonably
determined by the Agent as of one year from the date of determination.
(e) MAXIMUM RECOURSE DEBT TO ESTIMATED MARKET VALUE. Suffer or permit
recourse debt or guarantees in respect of money borrowed to exceed 25% of
Estimated Market Value.
(f) MAXIMUM PERMITTED INVESTMENTS. Suffer or permit investments in (i)
notes or mortgages or (ii) unimproved real estate to exceed 5% of Estimated
Market Value in each case.
(g) INTEREST RATE PROTECTION. Maintain in effect interest rate
protection arrangements, in form and substance reasonably satisfactory to Agent,
for all variable rate loans in excess of 12.5% of Lexington's Estimated Market
Value, providing for the rate of interest applicable to such indebtedness to be
capped at a rate satisfactory to Agent. Such arrangements shall be maintained in
full force and effect until all Obligations are repaid in full or until variable
note loans shall be less than 12.5% of Lexington's Estimated Market Value.
(h) LIMITATION ON CONSTRUCTION ACTIVITY. Have construction in process
(defined as total estimated completed cost of new construction, expansions and
redevelopment in process, excluding tenant improvements and property renovation
and refurbishment) whose value exceeds 10% of Estimated Market Value.
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(i) MINIMUM FIXED CHARGE COVERAGE. Suffer or permit the ratio of EBIDA
less non-revenue generating capital expenditures to annual debt service plus
dividends to be less than 0.95 to 1.0.
7.2. RESTRICTED PAYMENTS.
(a) Declare, make or pay any Restricted Payment while any Default under
Section 2.6(c) or (d) or Event of Default is continuing either before or after
giving effect to such Restricted Payment, unless Borrowers have sufficient funds
or availability under its credit facilities (including this Agreement) to pay
the next installment of principal or interest payable in respect of the
Obligations; or
(b) While any Default under Section 2.6(c) or (d) or any Event of
Default is continuing, make any payment of Indebtedness of Borrowers in
contravention of the terms of any agreement or instrument subordinating or
purporting to subordinate any rights to receive payments in respect of any
Indebtedness of Borrowers to any rights to receive payments under this
Agreement.
7.3. MERGER; SALE OF ASSETS; TERMINATION AND OTHER ACTIONS.
(a) Cause to be organized or assist in organizing any Person under the
laws of any jurisdiction to acquire all or substantially all of the assets of
any Borrower, terminate, wind up, liquidate or dissolve its affairs or enter
into any reorganization, merger or consolidation (except with or into another
Borrower) or take any other action whatsoever under or pursuant to its
organizational documents or agree to do any of the foregoing at any future time,
or (b) convey, sell, lease or otherwise dispose of (i) any of the Properties or
(ii) any substantial part of its property or assets (other than the Properties)
unless, in the case of this clause (b), either (A) the consideration therefor
shall be equal to the fair market value thereof and no Default or Event of
Default results therefrom, (B) such conveyance, sale, lease or other disposition
is pursuant to the exercise of an option contained in a Lease or (C) is
permitted under Section 7.10. Notwithstanding the foregoing, LCIFI and LCIFII
may be consolidated with or merged into each other, provided that Borrowers'
Agent gives Agent at least 10 days' notice thereof and the Borrowers shall
execute, acknowledge as applicable and deliver to Agent such modifications or
other documents or agreements as may be reasonably necessary to maintain the
Liens granted to the Lenders hereunder prior to the effective date of such
merger.
7.4. TRANSACTIONS WITH AFFILIATES. Enter into or be a party to any
transaction directly or indirectly with or for the benefit of any Affiliate of
any Borrower, other than (i) in the ordinary course of business and (ii) for
fair consideration and on terms no less favorable to any Borrower than are
available in an arm's-length transaction from unaffiliated third parties.
7.5. ACCOUNTING CHANGES. Make any significant change in accounting
treatment and reporting practices, except as required by GAAP or with which
Borrowers' independent certified public accountants have agreed. Such Borrower
shall advise Agent sufficiently in advance of any change to permit
representatives of Agent to discuss the proposed change with the officers of
such Borrower.
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7.6. NO LIENS. Suffer or permit after the date hereof any Lien on any
Property, whether superior or inferior to the Liens created by the Security
Documents, except (i) the Liens pursuant to Indebtedness set forth on Exhibit H,
(ii) Liens granted on any Property to secure borrowings from one or more
financial institutions, where the net proceeds thereof are applied in prepayment
of the Obligations pursuant to the terms hereof, and (iii) any other Permitted
Exceptions or Customary Permitted Liens.
7.7. FISCAL YEAR. Change the fiscal year end of any Borrower from
December 31 to any other date without the prior written consent of Agent.
7.8. CHIEF EXECUTIVE OFFICE. Change the name of any Borrower or the
chief executive office of such Borrower or the address where such Borrower's
books and records with respect to the Collateral are maintained unless such
Borrower has (a) given Agent at least fifteen (15) Business Days' prior written
notice of any such change and (b) made all such filings and recordings necessary
to maintain the priority and, if perfected in accordance with the terms hereof,
perfection of the Liens in favor of the Agent under the Loan Documents.
7.9. SELF-DIRECTED REIT. Suffer or permit Lexington to be other than
self-directed and self-administered or fail to obtain the consent of Agent prior
to any change to third-party management or leasing.
7.10. LIMITATIONS ON CERTAIN ACTIVITIES. Except in connection with the
release of an Eligible Property in accordance with Section 2.17 or sales,
transfers or encumbrances to another Borrower (i) no sale, transfer, pledge or
assignment of more than 49% of the ownership interests in any of the Borrowers
excluding Lexington; (ii) no sale, transfer or further encumbrances on any
Collateral without Agent's consent and (iii) no material changes in any
Borrower's business of owning, managing and investing in credit-tenant,
net-lease, office, industrial and retail properties.
7.11. DISTRIBUTION. Suffer or permit Lexington to use any portion of
the Loans to make any distributions to partners or shareholders which exceed 95%
of the greater of Lexington's (a) Funds From Operations or (b) taxable income.
7.12. ERISA. No Borrower nor any of its Subsidiaries or ERISA
Affiliates shall:
(a) engage in any prohibited transaction described in Sections 406 of
ERISA or 4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from the DOL;
(b) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Code), with respect to any Plan, whether or
not waived;
(c) fail to pay timely required contributions or annual installments
due with respect to any waived funding deficiency to any Plan;
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(d) terminate any Plan which would result in any liability of any
Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer Plan
which any Borrower or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining thereto;
(f) fail to pay any required installment 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; or
(g) amend a Benefit Plan resulting in an increase in current liability
for the plan year such that any Borrower or any ERISA Affiliate is required to
provide security to such Plan under Section 401 (a) (29) of the Code.
SECTION 8. EVENTS OF DEFAULT
8.1. EVENTS OF DEFAULT. Upon the occurrence of any of the following
events (each an "EVENT OF DEFAULT"):
(a) PAYMENTS. Any Borrower shall fail to pay any principal of or
interest on any Note within ten (10) days after the due date thereof, or any
other amount payable hereunder shall not be paid within ten (10) days after
notice from Lender; or
(b) REPRESENTATIONS AND WARRANTIES. Any representation or warranty made
or deemed made by any Borrower herein or in any other Loan Document or which is
contained in any certificate, document or financial or other statement furnished
at any time under or in connection with this Agreement or any other Loan
Document shall prove to have been incorrect in any material respect on or as of
the date made or deemed made; or
(c) CERTAIN COVENANT DEFAULTS. Any Borrower shall default in the
observance or performance of Sections 2.6 (c), 2.6 (d) or 6.16 and such default
shall continue unremidied beyond the period specified therein. Any Borrower
shall default in the observance or performance of any agreement contained in
Section 7.1 of this Agreement and such default shall continue unremedied for a
period of 90 days after notice to Borrowers' Agent by Agent; or
(d) CERTAIN OTHER COVENANT DEFAULTS. Any Borrower shall default in the
observance or performance of any other covenant or provision of this Agreement
or any of the other Loan Documents, and such default shall continue unremedied
for a period of 30 days after notice from Agent or such longer period as may be
reasonably necessary to cure such default (but in no event more than ninety (90)
days) provided such Borrower commences such cure within said thirty (30) day
period and diligently prosecutes same to completion (or such other period of
time as may be specifically set forth elsewhere in this Agreement with respect
to specific matters); or
(e) CROSS-DEFAULT. Any Borrower shall (i) default in any payment of
principal of or interest on any recourse Indebtedness which, individually or
together with defaults by other Borrowers on
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any recourse Indebtedness, exceeds $1,000,000, beyond the period of grace, if
any, provided in the instrument or agreement under which such recourse
Indebtedness or Contingent Obligation was created; or (ii) default beyond
applicable grace periods in the observance or performance of any other agreement
or condition relating to any non-recourse Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur, the effect of which default beyond applicable grace periods
or other event is to cause, or to permit the holder or holders of $20,000,000 or
more of non-recourse Indebtedness of such Borrower individually or together with
defaults beyond applicable grace periods of other Borrowers to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity; or (iii) default beyond applicable grace periods in the
observance or performance of any provision of any Ground Lease affecting an
Eligible Property which if uncured is reasonably likely to have a Material
Adverse Effect; or
(f) QUALIFICATION AS REIT. Agent shall have determined in good faith,
and shall have so given notice to Borrowers' Agent that Lexington has at any
time ceased to qualify, or has not qualified, as a real estate investment trust
for any of the purposes of the provisions of the Code applicable to real estate
investment trusts; provided, however, that no Event of Default under this
Section (f) shall be deemed to have occurred and be continuing if, within thirty
(30) days after notice of any such determination is given Borrowers' Agent shall
have furnished Agent with an opinion of Borrowers' Agent's tax counsel (who
shall be reasonably satisfactory to Agent provided that the Agent may not
unreasonably withhold its approval) to the effect that the Lexington is then in
a position to so qualify, or has so qualified, as the case may be, which opinion
shall not contain any material qualification unsatisfactory to the Agent; or
(g) INSOLVENCY, ETC. There shall be an Insolvency Event with respect to
any Borrower; or
(h) ERISA. (i) Any Borrower or ERISA Affiliate shall engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan, (iii) a Termination Event shall occur or (iv) any other
event or condition shall occur or exist with respect to a Plan or a
Multiemployer Plan; and in each case in clauses (i) through (iv) above, such
event or condition, together with all other such events or conditions, if any,
could subject any Borrower to any tax, penalty or other liabilities in the
aggregate material in relation to the business, operations, property or
financial or other condition of any Borrower and any of the foregoing are not
corrected or cured within 30 days after notice to such Borrower; or
(i) CERTAIN JUDGMENTS. One or more judgments or decrees shall be entered
against any Borrower involving in the aggregate a liability (not paid or fully
covered by insurance) of $1,000,000 or more and all such judgments or decrees
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or
(j) CERTAIN OWNERSHIP OF LEXINGTON. The officers and directors of
Lexington (and/or their family members and trusts or similar entities
established for the benefit of, or under the control of, any of them) shall
cease at any time to maintain a direct or indirect minimum investment (including
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partnership interests in the Borrowers convertible or redeemable into Lexington
common stock) in Lexington of not less than 2% of its outstanding common stock;
or
(k) LOAN DOCUMENTS. From and after the Closing Date, any Loan Document
shall be terminated or otherwise shall cease to be in full force and effect
except in accordance with this Agreement or shall cease to give the Agent the
Liens purported to be given thereby or any party thereto other than a Lender
shall cease to be, or shall assert that it is not, bound thereby in accordance
with its terms and in the case of any party other than a Borrower, Borrowers'
Agent shall not have taken such steps as may be reasonably necessary to enforce
such Loan Document promptly after notice thereof by Agent; or
(l) ELIGIBLE PROPERTIES. If the Collateral does not consist of at least
one (1) Eligible Property and remain so until the Revolving Credit Termination
Date;
then, and in any such event, (i) if such event is an Event of Default specified
in paragraph (g) above, the Revolving Credit Commitment shall automatically and
immediately terminate and the Obligations hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement, any Note and any
other Loan Documents shall immediately become due and payable, and (ii) if such
event is any other Event of Default, either or both of the following actions may
be taken: (a) Agent may (and upon the written instructions of the Requisite
Lenders shall), by notice to Borrowers' Agent, declare the Revolving Credit
Commitment to be terminated forthwith, whereupon the Revolving Credit Commitment
shall immediately terminate; and (b) Agent may (and upon the written
instructions of the Requisite Lenders shall), by notice of default to Borrowers'
Agent, declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement, any Note and any other Loan Document to be
due and payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section 8.1, presentment,
demand, protest and all other notices of any kind are hereby expressly waived;
or
8.2. ANNULMENT OF ACCELERATION. If payment on the Loans and any Note is
accelerated in accordance with Section 8.1 of this Agreement, then and in every
such case, the Agent may (and upon the written instructions of the Requisite
Lenders shall), by an instrument delivered to Borrowers' Agent annul such
acceleration and the consequences thereof, provided, that at the time such
acceleration is annulled:
(a) all arrears of interest on the Loans and any Note and all other sums
payable in respect of the Loans and pursuant to this Agreement, any Note and
each other Loan Document (except any principal of or interest or premium on the
Loans and any Note and other sums which have become due and payable only by
reason of such acceleration) shall have been duly paid; and
(b) every other Default or Event of Default shall have been duly waived
or otherwise cured;
provided, further, that no such annulment shall extend to or affect any
subsequent Default or Event of Default or impair any right consequent thereon.
The provisions of this Section 8.2 is for the sole benefit of the Agent and is
not intended to benefit any Borrower and does not give any Borrower
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the right to require Agent or any Lender to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are met. No Lender may
exercise any right or remedy hereunder except through the Agent.
8.3. COOPERATION BY EACH BORROWER. To the extent that it lawfully may,
each Borrower agrees that it will not at any time insist upon or plead, or in
any manner whatever claim or take any benefit or advantage of any applicable
present or future stay, extension or moratorium law, which may affect observance
or performance of the provisions of this Agreement or of any Note or any other
Loan Document.
SECTION 9. THE AGENT
9.1. APPOINTMENT. (a) Each Lender and each Issuing Bank hereby
designates and appoints Fleet as the Agent of such Lender or such Issuing Bank
under this Agreement, and each Lender and each Issuing Bank hereby irrevocably
authorizes the Agent to take such action on its behalf under the provisions of
this Agreement and the Loan Documents and to exercise such powers as are set
forth herein or therein together with such other powers as are reasonably
incidental thereto. The Agent agrees to act as such on the express conditions
contained in this entire Section 9.
(b) The provisions of this entire Section 9 (other than Sections 9.8
and 9.10(a)) are solely for the benefit of the Agent, the Lenders and Issuing
Banks, and no Borrower shall have any right to rely on or enforce any of the
provisions hereof. In performing its functions and duties under this Agreement,
the Agent shall act solely as agent of the Lenders and the Issuing Banks and
does not assume and shall not be deemed to have assumed any obligation or
relationship of agency, trustee or fiduciary with or for any Borrower. The Agent
may perform any of its duties hereunder, or under the Loan Documents, by or
through its agents or employees.
9.2. NATURE OF DUTIES. The Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in the
Loan Documents. The duties of the Agent shall be mechanical and administrative
in nature. The Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any Lender or Holder. Nothing in this Agreement or
any of the Loan Documents, expressed or implied, is intended to or shall be
construed to impose upon the Agent any obligations in respect of this Agreement
or any of the Loan Documents except as expressly set forth herein or therein.
Each Lender shall make its own independent investigation of the financial
condition and affairs of each Borrower in connection with the making and the
continuance of the Loans hereunder and shall make its own appraisal of the
creditworthiness of each Borrower, and, except as specifically provided herein,
Agent shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information
with respect thereto, whether coming into its possession before the Closing Date
or at any time or times thereafter.
9.3. RIGHT TO REQUEST INSTRUCTIONS. The Agent may at any time request
instructions from the Lenders with respect to any actions or approvals which by
the terms of any of the Loan Documents the Agent is permitted or required to
take or to grant, and the Agent shall be
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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 any action or withholding any approval under any of the Loan
Documents until it shall have received such instructions from those Lenders from
whom the Agent is required to obtain such instructions for the pertinent matter
in accordance with the Loan Documents. Without limiting the generality of the
foregoing, no Lender or Holder shall have any right of action whatsoever against
the Agent as a result of the Agent acting or refraining from acting under the
Loan Documents in accordance with the instructions of the Requisite Lenders or,
where required by the express terms of this Agreement, a greater proportion of
the Lenders.
9.4. RIGHTS, EXCULPATION, ETC. Neither Agent, any Affiliate of Agent, nor
any of their respective officers, directors, employees, agents, attorneys or
consultants, shall be liable to any Lender for any action taken or omitted by
them hereunder or under any of the Loan Documents, or in connection herewith or
therewith, except that Agent shall be liable for its gross negligence or willful
misconduct in the performance of its express obligations hereunder. In the
absence of gross negligence, Agent shall not be liable for any apportionment or
distribution of payments made by it in good faith pursuant to Section 2.8, and
if any such apportionment or distribution is subsequently determined to have
been made in error the sole recourse of any Person to whom payment was due, but
not made, shall be to recover from the recipients of such payments any payment
in excess of the amount to which they are determined to have been entitled.
Agent shall not be responsible to any Lender for any recitals, statements,
representations or warranties herein or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement, the Notes or any of the other Loan Documents, or any of the
transactions contemplated hereby and thereby; or for the financial condition of
any Borrower, or any of its Subsidiaries or Affiliates. Agent shall not be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any of the Loan
Documents or the financial condition of any Borrower or any of its Subsidiaries
or Affiliates, or the existence or possible existence of any Default or Event of
Default. Agent may at any time request instructions from Lenders with respect to
any actions or approvals which, by the terms of this Agreement or of any of the
Loan Documents, Agent is permitted or required to take or to grant without
instructions from any Lenders, and if such instructions are promptly requested,
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
Requisite Lenders or, where applicable, all Lenders. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against Agent as
a result of Agent acting or refraining from acting under this Agreement, the
Notes or any of the other Loan Documents in accordance with the instructions of
Requisite Lenders or, where applicable, all Lenders. Agent shall promptly notify
each Lender at any time that the Requisite Lenders have instructed Agent to act
or refrain from acting pursuant hereto.
9.5. RELIANCE. The Agent shall be entitled to rely upon any written
notices, statements, certificates, orders or other documents or any telephone
message believed by it in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person, and with
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respect to all matters pertaining to this Agreement or any of the Loan Documents
and its duties hereunder or thereunder, upon advice of legal counsel (including
counsel for any Borrower), independent public accountants and other experts
selected by it.
9.6. INDEMNIFICATION. To the extent that the Agent is not reimbursed
and indemnified by any Borrower, the Lenders will reimburse, within fifteen (15)
days after notice from Agent, and indemnify the Agent for and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against it in any way relating to or
arising out of the Loan Documents or any action taken or omitted by the Agent
under the Loan Documents, in proportion to each Lender's Pro Rata Share. The
obligations of the Lenders under this Section 9.6 shall survive the payment in
full of the Loans, the Reimbursement Obligations and all other Obligations and
the termination of this Agreement. In the event that after payment and
distribution of any amount by Agent to Lenders, any Lender or third party,
including Borrower, any creditor of Borrower or a trustee in bankruptcy,
recovers from Agent any amount found to have been wrongfully paid to Agent or
disbursed by Agent to Lenders, then Lenders, in proportion to their respective
Pro Rata Shares, shall reimburse Agent for all such amounts.
9.7. AGENT INDIVIDUALLY. With respect to its Pro Rata Share of the
Revolving Credit Commitment hereunder, and the Loans made by it, Agent shall
have and may exercise the same rights and powers hereunder and is subject to the
same obligations and liabilities as and to the extent set forth herein for any
other Lender. The terms "Lenders" or "Requisite Lenders" or any similar terms
shall, unless the context clearly otherwise indicates, include Agent in its
individual capacity as a Lender or one of the Requisite Lenders. Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of banking, trust or other business with any Borrower as if it were not
acting as the Agent pursuant hereto.
9.8. SUCCESSOR AGENTS. (a) RESIGNATION. The Agent may resign from the
performance of its functions and duties as agent hereunder at any time by giving
at least thirty (30) Business Days' prior written notice to the Borrowers' Agent
and the Lenders. Such resignation shall take effect upon the acceptance by a
successor Agent of appointment pursuant to this Section 9.8.
(b) APPOINTMENT BY REQUISITE LENDERS. Upon any such resignation
becoming effective, (i) if a co-agent shall then be acting with respect to this
Agreement, such co-agent shall become the Agent or (ii) if no co-agent shall
then be acting with respect to this Agreement, the Requisite Lenders shall have
the right to appoint a successor Agent selected from among the Lenders, provided
that the Requisite Lenders shall have received the prior written consent of
Borrowers' Agent to such successor Agent, which consent shall not be
unreasonably withheld or delayed.
(c) APPOINTMENT BY RETIRING AGENT. If a successor Agent shall not have
been appointed within the thirty (30) Business Day or shorter period provided in
paragraph (a) of this Section 9.8, the retiring Agent shall then appoint a
successor Agent which successor Agent shall be reasonably acceptable to
Borrowers' Agent who shall serve as Agent until such time, if any, as the
Lenders appoint a successor Agent as provided above.
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(d) RIGHTS OF THE SUCCESSOR AND RETIRING AGENTS. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent (which shall have been
approved by Borrowers' Agent as provided above), such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations as Agent under this Agreement (but not as
Lender). After any retiring Agent's resignation hereunder as Agent, the
provisions of this entire Section 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under this Agreement.
9.9. RELATIONS AMONG THE LENDERS. Each Lender and each Issuing Bank
agrees that it will not take any legal action, nor institute any actions or
proceedings, against any Borrower or any other obligor hereunder, without the
prior written consent of the Lenders. Without limiting the generality of the
foregoing, no Lender may accelerate or otherwise enforce its portion of the
Obligations, or unilaterally terminate its Revolving Credit Commitment except in
accordance with Section 8.1.
9.10 CONSENT AND APPROVALS; AGENCY PROVISIONS RELATING TO COLLATERAL.
(a) Each Lender authorizes and directs Agent to enter into the
Loan Documents other than this Agreement for the benefit of Lenders. Each Lender
agrees that any action taken by Agent at the direction or with the consent of
Requisite Lenders, in accordance with the provisions of this Agreement or any
Loan Document, and the exercise by Agent at the direction or with the consent of
Requisite Lenders 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 Lenders, except for actions specifically requiring the approval
of all Lenders. All communications from Agent to Lenders requesting Lenders
determination, consent, approval or disapproval (i) shall be given in the form
of a written notice to each Lender, (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 Lender where such matter or thing
may be inspected, or shall otherwise describe the matter or issue to be
resolved, and (iii) shall include, if reasonably requested by a Lender and to
the extent not previously provided to such Lender, any written materials
provided to Agent by Borrowers' Agent in respect of the matter or issue to be
resolved. Each Lender shall reply promptly, but in any event (x) within fifteen
(15) Business Days for those matters requiring the consent by all Lenders, (y)
within fifteen (15) Business Days with respect to the acceptance of additional
Eligible Properties and (z) except as provided in clauses (x) and (y), within
ten (10) Business Days for those matters requiring the consent by Requisite
Lenders in each instance, after receipt of the request therefor by Agent (in
either event, the "LENDER REPLY PERIOD"). Unless a Lender shall give written
notice to Agent that it objects to the recommendation or determination of Agent
(together with a written explanation of the reasons behind such objection)
within the Lender Reply Period, such Lender shall be deemed to have approved of
or consented to such recommendation or determination. With respect to decisions
requiring the approval of Requisite Lenders or all Lenders, Agent shall submit
its recommendation or determination for approval of or consent to such
recommendation or determination to all Lenders and upon receiving the required
approval or consent shall follow the
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course of action or determination recommended to Lenders by Agent or such other
course of action recommended by Requisite Lenders and each non-responding Lender
shall be deemed to have concurred with such recommended course of action.
(b) Agent is hereby authorized on behalf of all Lenders, without
the necessity of any notice to or further consent from any Lender, from time to
time prior to an Event of Default, to take any action with respect to any
Collateral or Loan Document which may be necessary to perfect and maintain
perfected Agent's Liens upon the Collateral granted pursuant to the Loan
Documents. Agent may make, and shall be reimbursed for, Protective Advance(s)
during any one calendar year with respect to each Property up to the sum of (i)
amounts expended to pay real estate taxes, assessments and governmental charges
or levies imposed upon such Property, (ii) amounts expended to pay insurance
premiums for policies of insurance related to such Property, and (iii) Fifty
Thousand Dollars ($50,000). Protective Advances in excess of said sum during any
calendar year for any Property shall require the consent of Requisite Lenders.
In addition, Agent is hereby authorized on behalf of all Lenders, without the
necessity of any notice to or further consent from any Lender, to waive the
imposition of the late fees provided for in Section 2.4(c) up to a maximum of
one (1) time during the term of this Agreement, including any extensions.
(c) Lenders hereby irrevocably authorize Agent, at its option
and in its discretion, to release any Lien granted to or held by Agent upon any
Collateral (i) upon termination of the Revolving Loan Commitment and repayment
and satisfaction of all Loans, and all other Obligations and the termination of
this Agreement or (ii) constituting Property being released in compliance with
Section 2.17 hereof or (iii) if approved, authorized or ratified in writing by
Agent at the direction of all Lenders. Without in any manner limiting Agent's
authority to act without any specific or further authorization or consent by
Lenders (as set forth in Section 9.10(b)), upon request by Agent at any time,
Lenders will confirm in writing Agent's authority to release the Security
Documents with respect to any Property pursuant to Section 2.17 or this Section
9.10.
(d) So long as no Default or Event of Default is then
continuing, upon receipt by Agent of any such written confirmation as referenced
in Section 9.10(c)(iii) from all Lenders of its authority to release Collateral,
and upon at least five (5) Business Days prior written request by Borrowers'
Agent, Agent shall (and is hereby irrevocably authorized by Lenders to) execute
such documents as may be necessary to evidence the release of the Liens granted
to Agent for the benefit of Lenders herein or pursuant hereto upon such
Collateral; provided, that (i) Agent shall not be required to execute any such
document on terms which, in Agent's opinion, would expose Agent to liability or
create any obligation or entail any consequence other than the release of such
Liens without recourse or warranty, and (ii) such release shall not in any
manner discharge, affect or impair the Obligations or any Liens upon (or
obligations of Borrower in respect of) any Property which shall continue to
constitute part of the Collateral.
(e) Except as provided in this Agreement, Agent shall have no
obligation whatsoever to any Lender or to any other Person to assure that the
Collateral exists or is owned by any Borrower or is cared for, protected or
insured or has been encumbered or that the Liens
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granted to Agent herein or in any of the other Loan Documents or pursuant hereto
or thereto have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority.
(f) Should Agent commence any proceeding or in any way seek to
enforce its rights or remedies under the Loan Documents, irrespective of whether
as a result thereof Agent shall acquire title to any Collateral, either through
foreclosure, deed in lieu of foreclosure, or otherwise, each Lender, upon demand
therefor from time to time, shall contribute its share (based on its Pro Rata
Share) of the reasonable costs and/or expenses of any such enforcement or
acquisition, including, but not limited to, fees of receivers or trustees, court
costs, title company charges, filing and recording fees, appraisers' fees and
fees and expenses of attorneys to the extent not otherwise reimbursed by any
Borrower. Without limiting the generality of the foregoing, each Lender shall
contribute its share (based on its Pro Rata Share) of all reasonable costs and
expenses incurred by Agent (including reasonable attorneys' fees and expenses)
if Agent employs counsel for advice or other representation (whether or not any
suit has been or shall be filed) with respect to any Collateral or any part
thereof, or any of the Loan Documents, or the attempt to enforce any security
interest or Lien on any of the Collateral, or to enforce any rights of Agent or
any Borrower's or any other party's obligations under any of the Loan Documents,
but not with respect to any dispute between Agent and any other Lender(s). Any
loss of principal and interest resulting from any Event of Default shall be
shared by Lenders in accordance with their respective Pro Rata Shares. It is
understood and agreed that in the event Agent determines it is necessary to
engage counsel for Lenders from and after the occurrence of an Event of Default,
said counsel shall be selected by Agent.
(g) In the event that all or any portion of the Collateral is
acquired by Agent as the result of a foreclosure or the acceptance of a deed or
assignment in lieu of foreclosure, or is retained in satisfaction of all or any
part of any Borrower's obligations, title to any such Collateral or any portion
thereof shall be held in the name of Agent or a nominee or subsidiary of Agent,
as agent, for the ratable benefit of Agent and Lenders.
9.11. NOTICE OF EVENTS OF DEFAULT. Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default (other
than nonpayment of principal of or interest on the Loans) unless Agent has
received notice in writing from a Lender or a Borrower referring to this
Agreement or the other Loan Documents, describing such event or condition and
expressly stating that such notice is a notice of a Default or Event of Default.
Should Agent receive such notice of the occurrence of a Default or Event of
Default, or should Agent send any Borrower a notice of Default or Event of
Default, Agent shall promptly give notice thereof to each Lender. Each Lender
shall be obligated to notify Agent of any Default or Event of Default of which
it has actual knowledge.
9.12. RATABLE SHARING. The Lenders agree among themselves that (i) with
respect to all amounts received by them which are applicable to the payment of
the Obligations (excluding the fees described in Sections 3.1(g), 2.10, 2.13 and
2.14) equitable adjustment will be made so that, in effect, all such amounts
will be shared among them ratably in accordance with their Pro Rata Shares,
whether received by voluntary payment, by the exercise of the right of setoff or
banker's
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lien, by counterclaim or crossaction or by the enforcement of any or all of the
Obligations (excluding the fees described in Sections 3.1(g), 2.10, 2.13 and
2.14), (ii) if any of them shall by voluntary payment or by the exercise of any
right of counterclaim, setoff, banker's lien or otherwise, receive payment of a
proportion of the aggregate amount of the Obligations held by it, which is
greater than the amount which such Lender is entitled to receive hereunder, the
Lender receiving such excess payment shall purchase, without recourse or
warranty, an undivided interest and participation (which it shall be deemed to
have done simultaneously upon the receipt of such payment) in such Obligations
owed to the others that all such recoveries with respect to such Obligations
shall be applied ratably in accordance with their Pro Rata Shares; provided,
however, that if all or part of such excess payment received by the purchasing
party is thereafter recovered from it, those purchases shall be rescinded and
the purchase prices paid for such participations shall be returned to such party
to the extent necessary to adjust for such recovery, but without interest except
to the extent the purchasing party is required to pay interest in connection
with such recovery. Each Borrower agrees that, except as otherwise expressly
provided herein, any Lender so purchasing a participation from another Lender
pursuant to this Section 9.12 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of setoff) with respect
to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.
9.13. DEFAULTING LENDERS. If for any reason any Lender (a "Defaulting
Lender") shall fail or refuse to perform its obligations under this Agreement or
any other Loan Document to which it is a party within the time period specified
for performance of such obligation or, if no time period is specified, if such
failure or refusal continues for a period of ten (10) Business Days after notice
from Agent, then, in addition to the rights and remedies that may be available
to Agent or any Borrower under this Agreement or applicable law, notwithstanding
anything to the contrary contained herein, such Defaulting Lender's right to
participate in the administration of the Loans, this Agreement and the other
Loan Documents, including without limitation, any right to vote in respect of,
to consent to or to direct any action or inaction of Agent or to be taken into
account in the calculation of Requisite Lenders, shall be suspended during the
pendency of such failure or refusal. If for any reason a Lender fails to make
timely payment to Agent of any amount required to be paid to Agent hereunder
(without giving effect to any notice or cure periods), in addition to other
rights and remedies which Agent or any Borrower may have under the immediately
preceding provisions or otherwise, Agent shall be entitled (i) to collect
interest from such Defaulting Lender on such delinquent payment for the period
from the date on which the payment was due until the date on which the payment
is made at the Federal Funds Effective Rate, (ii) to withhold or setoff and to
apply in satisfaction of the defaulted payment and any related interest, any
amounts otherwise payable to such Lender under this Agreement or any other Loan
Document, (iii) to bring an action or suit against such Lender in a court of
competent jurisdiction to recover the defaulted amount and any related interest
or (iv) cause the Defaulting Lender to assign its Pro Rata Share of the Loans to
an Eligible Assignee designated by Agent upon the terms set forth in Section
9.14(b). Any amounts received by Agent in respect of a Defaulting Lender's Pro
Rata Share of the Loans shall not be paid to such Defaulting Lender and shall be
held by Agent and either applied against the purchase price of such Pro Rata
Share of the Loans under Section 9.14 or Section 2.8(b)(v) or paid to such
Defaulting Lender upon the Defaulting Lender's curing of its default.
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9.14. PURCHASING OF DEFAULTING LENDER'S PRO RATA SHARE.
(a) Any Lender who is not a Defaulting Lender shall have the right, but
not the obligation, in its sole discretion, to acquire all of a Defaulting
Lender's Pro Rata Share of the Loans. If more than one Lender exercises such
right, each such Lender shall have the right to acquire such proportion of such
Defaulting Lender's Pro Rata Share of the Loans as they may mutually agree. Upon
any such purchase of the Pro Rata Share of the Loans of a Defaulting Lender, the
Defaulting Lender's interest in the Loans and its rights hereunder (but not its
liability in respect thereof or under the Loan Documents or this Agreement to
the extent the same relate to the period prior to the effective date of the
purchase) shall terminate on the date of purchase, and the Defaulting Lender
shall promptly execute all documents reasonably requested to surrender and
transfer such interest to the purchaser thereof, including an appropriate
Assignment and Acceptance Agreement and, notwithstanding Section 10.1(d), shall
pay to Agent an assignment fee in the amount of $6,000. Notwithstanding the
foregoing, if no Lender exercises the right to acquire the Defaulting Lender's
Pro Rata Share of the Loans within thirty (30) days after the expiration of the
cure period set forth in Section 9.13, Borrowers' Agent shall have the right to
require the Agent to cause the Defaulting Lender to assign its Pro Rata Share of
the Loans to an Eligible Assignee designated by the Borrowers' Agent who has
agreed to accept such an assignment in accordance with the terms of Section
9.14(b), provided however, that Borrowers' Agent shall be entitled to exercise
this right only if the Agent has not located an Eligible Assignee of its own and
there is no dispute with the Defaulting Lender concerning such Default.
(b) The purchase price for the Pro Rata Share of the Loans of a
Defaulting Lender shall be equal to the amount of the principal balance of the
Loans outstanding and owed by Borrowers to the Defaulting Lender. Prior to
payment of such purchase price to Defaulting Lender, Agent shall apply against
such purchase price any amounts payable in respect of such Pro Rata Share of the
Loans as contemplated by the last sentence of Section 9.13. The Defaulting
Lender shall be entitled to receive amounts owed to it by any Borrower under the
Loans Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by Agent from or on behalf of
Borrower. There shall be no recourse against any Lender or Agent for the payment
of such sums except to the extent of the receipt of payments from any other
party or in respect of the Loans.
SECTION 10. GENERAL
10.1. ASSIGNMENTS AND PARTICIPATIONS. (a) ASSIGNMENTS. No assignments
or participation's of any Lender's rights or obligations under this Agreement
shall be made except in accordance with this Section 10.1. Each Lender may
assign to one or more Eligible Assignees who, so long as no Default or Event of
Default exists and is continuing, is approved by Borrower's Agent (which
approval shall not be unreasonably withheld, conditioned or delayed) all or a
portion of its rights and obligations under this Agreement (including all of its
rights and obligations with respect to the Loans and the Letters of Credit) in
accordance with the provisions of this Section 10.1.
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(b) LIMITATIONS ON ASSIGNMENTS. Each assignment shall be subject to the
following conditions: (i) each assignment shall be of a constant, and not a
varying, ratable percentage of all of the assigning Lender's right and
obligations under this Agreement and, in the case of a partial assignment, shall
be in a minimum principal amount of $15,000,000, (ii) each such assignment shall
be to an Eligible Assignee who, so long as no Default or Event of Default exists
and is continuing, is approved by Borrower's Agent (which approval shall not be
unreasonably withheld, conditioned or delayed), and (iii) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance. Upon such execution,
delivery, acceptance and recording in the Register, from and after the effective
date specified in each Assignment and Acceptance and agreed to by the Agent, (A)
the assignee thereunder shall, in addition to any rights and obligations
hereunder held by it immediately prior to such effective date, if any, have the
right to and obligations hereunder that have been assigned to it pursuant to
such Assignment and Acceptance and shall, to the fullest extent permitted by
law, have the same rights and benefits hereunder as if it were an original
Lender hereunder, (B) the assigning Lender shall, to the extent that rights and
obligations hereunder have been assigned by it and assumed by the Eligible
Assignee pursuant to such Assignment and Acceptance, relinquish its rights and
be released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of such
assigning Lender's rights and obligations under this Agreement, the assigning
Lender shall cease to be a party hereto) and (C) each Borrower shall execute and
deliver to the assignee thereunder a Note evidencing its obligations to such
assignee with respect to the Loans and, if applicable, a new Note to the
Assignor evidencing its remaining obligations to the Assignor. Notwithstanding
the foregoing, the Agent hereunder shall be required to maintain a minimum
Revolving Credit Commitment, Loans or a combination thereof of $20,000,000.
(c) THE REGISTER. The Agent shall maintain at its address referred to
in Section 10.10 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register (the "REGISTER") for the recordation of the names
and addresses of the Lenders, the Revolving Credit Commitment of, and the
principal amount of the Loans under the Revolving Credit Commitment owing to,
each Lender from time to time and whether such Lender is an original Lender or
the assignee of another Lender pursuant to an Assignment and Acceptance. The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and each Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
Borrowers' Agent or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) FEE. Upon its receipt of an Assignment and Acceptance executed by
the assigning Lender and an Eligible Assignee and a processing and recordation
fee of $2,500 (payable by the assigning Lender or the assignee, as shall be
agreed between them), the Agent shall, if such Assignment and Acceptance has
been completed and is in compliance with this Agreement and in substantially the
form of Exhibit R hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrowers' Agents and the other Lenders.
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(e) PARTICIPATIONS. Each Lender may sell participation's to one or more
other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities under this Agreement
(including, without limitation, all or a portion of any or all of its Revolving
Credit Commitment hereunder and the Loans owing to it and its undivided interest
in the Letters of Credit); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Revolving Credit
Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, and (iii) each Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (iv) such participant's
rights to agree or to restrict such Lender's ability to agree to the
modification, waiver or release of any of the terms of the Loan Documents, to
consent to any action or failure to act by any party to any of the Loan
Documents or any of their respective Affiliates or to exercise or refrain from
exercising any powers or rights which any Lender may have under or in respect of
the Loan Documents, shall be limited to the right to consent to (A) increase in
the Revolving Credit Commitment of the Lender from whom such participant
purchased a participation, (B) reduction of the principal of, or rate or amount
of interest on the Loans subject to such participation (other than by the
payment or prepayment thereof), (C) postponement of the Revolving Credit
Termination Date (other than pursuant to Section 2.1(c) hereof) and (D) release
of any guarantor of the Obligations.
(f) INFORMATION REGARDING THE BORROWER. Any Lender may, in connection
with any assignment or participation pursuant to this Section 10.1, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to any Borrower furnished to such Lender by the Agent or by or on
behalf of such Borrower; provided that, prior to any such disclosure, such
assignee or participant, or proposed assignee or participant, shall agree to
preserve in accordance with Section 10.16 the confidentiality of any
confidential information described therein.
(g) PAYMENT TO PARTICIPANTS. Anything in this Agreement to the contrary
notwithstanding, in the case of any participation, all amounts payable by any
Borrower under the Loan Documents shall be calculated and made in the manner and
to the parties required hereby as if no such participation had been sold.
(h) LENDERS' CREATION OF SECURITY INTERESTS. Notwithstanding any other
provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Note held by it)
in favor of any Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
(i) ASSIGNMENTS BY FLEET. If Fleet ceases to be a Lender under this
Agreement by virtue of any assignment made pursuant to this Section 10.1, then,
as of the effective date of such cessation, Fleet's obligations to issue Letters
of Credit pursuant to Section 3.01 shall terminate and Fleet shall be an Issuing
Bank hereunder only with respect to outstanding Letters of Credit issued prior
to such date.
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(j) FOREIGN BANKS. Any assignee or participant that is not created or
organized under the laws of the United States or a political subdivision thereof
shall deliver to the Borrowers' Agent a true and accurate certificate executed
by a duly authorized officer to the effect that such party is subject to tax
review and eligible to receive payments hereunder and under any Note without
deduction or withholding of United States federal income tax (i) under the
provisions of an applicable tax treaty concluded by the United States (in which
case the certificate shall be accompanied by two duly completed copies of IRS
Form 1001 (or any successor or substitute form or forms)) or (ii) under Sections
1442(c)(1) and 1442 (a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 4224
(or any successor or substitute form or forms).
(k) BORROWERS' RIGHTS AND OBLIGATIONS UNAFFECTED. Notwithstanding
anything to the contrary contained herein, no assignment or participation by any
Lender shall result in any material change in any of the Loan Documents, any
additional or increased cost or obligation to Borrowers or reduce the rights or
benefits of the Borrowers hereunder without the prior written consent of the
Borrowers' Agent.
10.2. AMENDMENTS AND WAIVERS. (a) GENERAL PROVISIONS. Unless otherwise
provided for or required in this Agreement, no amendment or modification of any
provision of this Agreement or any of the other Loan Documents shall be
effective without the written agreement of the Requisite Lenders (which the
Requisite Lenders shall have the right to grant or withhold in their sole
discretion) and the Borrowers' Agent; provided, however, that no Borrower's
approval shall be required for any amendment or modification of Sections 9.1
through 9.14. No termination or waiver of any provision of this Agreement or any
of the other Loan Documents, or consent to any departure by any Borrower
therefrom, shall be effective without the written concurrence of the Requisite
Lenders, which the Requisite Lenders shall have the right to grant or withhold
in their sole discretion. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was given. No notice
to or demand on any Borrower in any specific instance shall entitle such
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) AMENDMENTS, CONSENTS AND WAIVERS BY ALL LENDERS. Any amendment,
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender as described below (except as otherwise
indicated):
(i) increase in the amount of such Lender's Revolving Credit
Commitment,
(ii) reduction of the rate or amount of interest on the Loans,
the Reimbursement Obligations, or any fees or other amounts payable to
such Lender (other than by the payment or prepayment thereof),
(iii) reduction of the principal amount of any Loans (other
than by the payment or prepayment thereof),
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(iv) postponement of any date (including the Revolving Credit
Termination Date except as permitted by Section 2.1(c)) fixed for any
payment of principal of, or interest on, the Loans, the Reimbursement
Obligations or any fees or other amounts payable to such Lender (except
with respect to any modifications of the application provisions
relating to prepayments of Loans and other Obligations which are
governed by Section 2.8(b),
(v) change in the definition of Requisite Lenders or in the
aggregate Pro Rata Share of the Lenders which shall be required for the
Lenders or any of them to take action hereunder or under the other Loan
Documents,
(vi) amendment of Section 9.12 or this Section 10.2,
(vii) assignment of any right or interest in or under this
Agreement or any of the other Loan Documents by any Borrower,
(viii) waiver of any Event of Default described in Sections
8.1(a) or (g);
(ix) the release of any Eligible Property which would result
in Maximum Availability being less than $30,000,000; and
(x) change in the definition of Maximum Availability.
(c) AGENT AUTHORITY. The Agent may, but shall have no obligation to,
with the written concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of that Lender. Notwithstanding anything to the
contrary contained in this Section 10.2, no amendment, modification, waiver or
consent shall affect the rights or duties of the Agent under this Agreement and
the other Loan Documents, unless made in writing and signed by the Agent in
addition to the Lenders required above to take such action. Notwithstanding
anything herein to the contrary, in the event that any Borrower shall have
requested, in writing, that any Lender agree to an amendment, modification,
waiver or consent with respect to any particular provision or provisions of this
Agreement or the other Loan Documents, and such Lender shall have failed to
state, in writing, that it either agrees or disagrees (in full or in part) with
all such requests (in the case of its statement of agreement, subject to
satisfactory documentation and such other conditions it may specify) within ten
(10) days after such request, then such Lender hereby irrevocably authorizes the
Agent to agree or disagree, in full or in part, and in the Agent's sole
discretion, to such requests on behalf of such Lender as such Lenders'
attorney-in-fact and to execute and deliver any writing approved by the Agent
which evidences such agreement as such Lender's duly authorized agent for such
purposes.
10.3 MARSHALLING; PAYMENTS SET ASIDE. None of the Agent, any Lender or
any Issuing Bank shall be under any obligation to marshall any assets in favor
of any Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent that such Borrower makes a payment or payments to the
Agent, the Lenders or the Issuing Banks or any such Person
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exercise its rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
10.4 LIMITATION OF LIABILITY. No claim may be made by any Lender, any
Issuing Bank, the Agent or any other Person (other than the Borrowers) against
the Agent, any other Issuing Bank or any other Lender or the Affiliates,
directors, officers, employees, attorneys or agents 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 any act, omission or event occurring in
connection therewith; and each Lender, each Issuing Bank and the Agent hereby
waives, releases and agrees not to sue upon any such claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
10.5 COUNTERPARTS; EFFECTIVENESS; INCONSISTENCIES. This Agreement and
any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against each Borrower,
each Lender, each Issuing Bank and the Agent on the Closing Date. This Agreement
and each of the other Loan Documents shall be construed to the extent reasonable
to be consistent one with the other, but to the extent that the terms and
conditions of this Agreement are actually inconsistent with the terms and
conditions of any other Loan Document, this Agreement shall govern. In the event
the Lenders enter into any co-lender agreement with the Agent pertaining to the
Lenders' respective rights with respect to voting on any matter referenced in
this Agreement or the other Loan Documents on which the Lenders have a right to
vote under the terms of this Agreement or the other Loan Documents, such
co-lender agreement shall be construed to the extent reasonable to be consistent
with this Agreement and the other Loan Documents, but to the extent that the
terms and conditions of such co-lender agreement are actually inconsistent with
the terms and conditions of this Agreement and/or the other Loan Documents, as
among the Lenders and Agent, such co-lender agreement shall govern.
Notwithstanding the foregoing, any rights reserved to the Agent under this
Agreement and the other Loan Documents shall not be varied or in any way
affected by such co-lender agreement and the rights and obligation of each
Borrower hereunder and under the Loan Documents will not be modified or affected
by such co-lender agreement.
10.6 DISCLAIMER BY LENDER. The Agent, the Issuing Banks and the Lenders
shall not be liable to any contractor, subcontractor, supplier, laborer,
architect, engineer, tenant or other party for services performed or materials
supplied in connection with any work performed on any of the Properties. The
Agent, the Issuing Banks and the Lenders shall not be liable for any debts or
claims accruing in favor of any such parties against any Borrower or others or
against any of the Properties. No Borrower is nor shall be an agent of either
the Agent, the Issuing Banks or the Lenders for any purposes and neither the
Lender, the Issuing Banks nor the Agent shall be
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deemed partners or joint venturers with any Borrower or any of its Affiliates.
Neither the Agent, the Issuing Banks nor the Lenders shall be deemed to be in
privity of contract with any contractor or provider of services to any of the
Properties, nor shall any payment of funds directly to a contractor or
subcontractor or provider of services be deemed to create any third party
beneficiary status or recognition of same by either the Agent, the Issuing Banks
or the Lenders and each of the Borrowers agree to hold the Agent, the Issuing
Banks and the Lenders harmless from any of the damages and expenses resulting
from such a construction of the relationship of the parties or any assertion
thereof.
10.7 CHOICE OF LAW. THIS AGREEMENT, THE NOTES AND EACH LOAN DOCUMENT
SHALL BE CONTRACTS UNDER AND SHALL BY GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CONNECTICUT.
10.8 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; ETC.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, ANY NOTE OR ANY OTHER
LOAN DOCUMENT, EACH BORROWER HEREBY IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE
PERSONAL JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE OF CONNECTICUT
IN ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE
NOTES OR ANY OF THE OTHER LOAN DOCUMENTS; (b) AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH SUIT, ACTION OR OTHER LEGAL PROCEEDING MAY BE HEARD AND DETERMINED
IN, AND ENFORCED IN AND BY, ANY SUCH COURT; (c) WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO VENUE IN ANY SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM; (d) AGREES TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO BORROWERS' AGENT AT ITS
ADDRESS SET FORTH HEREIN OR TO SUCH OTHER ADDRESS OF WHICH LENDER SHALL HAVE
BEEN NOTIFIED IN WRITING (SUCH SERVICE TO BE EFFECTIVE ON THE EARLIER OF RECEIPT
THEREOF OR, IN THE CASE OF SERVICE BY MAIL, THE 5TH DAY AFTER DEPOSIT OF SUCH
SERVICE IN THE MAILS AS AFORESAID), (e) AGREES THAT THE FAILURE OF BORROWERS'
AGENT TO GIVE ANY NOTICE OF ANY SUCH SERVICE OF PROCESS TO IT SHALL NOT IMPAIR
OR EFFECT THE VALIDITY OF SUCH SERVICE OR ANY JUDGMENT BASED THEREON; (f) TO THE
EXTENT THAT SUCH PARTY HAS ACQUIRED, OR HEREAFTER MAY ACQUIRE, ANY IMMUNITY FROM
JURISDICTION OF ANY SUCH COURT OR FROM LEGAL PROCESS THEREIN, WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUCH IMMUNITY; (g) WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN CONNECTION WITH, OR WITH RESPECT
TO, ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE
NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, (i) ANY CLAIM THAT IT IS IMMUNE FROM
ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT
TO IT OR ANY OF ITS PROPERTY, (ii) ANY CLAIM
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THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, AND
(iii) ANY RIGHT TO A JURY TRIAL; AND (h) AGREES THAT AGENT SHALL HAVE THE RIGHT
TO BRING ANY LEGAL PROCEEDINGS (INCLUDING A PROCEEDING FOR ENFORCEMENT OF A
JUDGMENT ENTERED BY ANY OF THE AFOREMENTIONED COURTS) AGAINST ANY BORROWER IN
ANY OTHER COURT OR JURISDICTION IN ACCORDANCE WITH APPLICABLE LAW.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF
AGENT TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES
OR ANY OF THE OTHER LOAN DOCUMENTS IN THE COURTS OF ANY OTHER JURISDICTION OR
THE RIGHT, IN CONNECTION WITH ANY LEGAL ACTION OR PROCEEDING WHATSOEVER, TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. EACH BORROWER HEREBY
IRREVOCABLY DESIGNATES BORROWERS' AGENT AS ITS PROCESS AGENT TO RECEIVE SERVICE
OF ANY AND ALL PROCESS AND DOCUMENTS ON ITS BEHALF IN ANY LEGAL PROCEEDING IN
THE STATE OF CONNECTICUT AND BORROWERS' AGENT, BY ITS ACKNOWLEDGMENT BELOW,
IRREVOCABLY AGREES TO SO ACT AS AGENT FOR SERVICE OF PROCESS. IF SUCH AGENT
SHALL FOR ANY REASON FAIL TO ACT, OR BE PREVENTED FROM ACTING, AS SUCH AGENT,
NOTICE THEREOF SHALL IMMEDIATELY BE GIVEN TO SUCH AGENT BY REGISTERED OR
CERTIFIED MAIL AND EACH BORROWER AGREES PROMPTLY TO DESIGNATE ANOTHER AGENT FOR
SERVICE OF PROCESS IN THE CITY OF HARTFORD, CONNECTICUT, SATISFACTORY TO AGENT
UNDER THIS AGREEMENT, TO SERVE IN PLACE OF BORROWERS' AGENT AND DELIVER TO AGENT
WRITTEN EVIDENCE OF SUCH SUBSTITUTE AGENT'S ACCEPTANCE OF SUCH DESIGNATION.
BORROWERS' AGENT SHALL NEVERTHELESS CONTINUE TO SERVE AS AGENT FOR SERVICE OF
PROCESS UNTIL ITS SUCCESSOR IS DULY APPOINTED.
10.9 COMMERCIAL TRANSACTION. EACH BORROWER ACKNOWLEDGES THAT THE
TRANSACTION OF WHICH THIS AGREEMENT IS A PART IS A COMMERCIAL TRANSACTION AND
HEREBY WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE
CONNECTICUT GENERAL STATUTES OR BY OTHER APPLICABLE LAW WITH RESPECT TO ANY
PREJUDGMENT REMEDY WHICH THE AGENT MAY DESIRE TO USE.
10.10 NOTICES; CERTAIN PAYMENTS. (a) All notices, consents and other
communications to Borrowers, Agent or any Lender relating hereto to be effective
shall be in writing and shall be deemed made (i) if by certified mail, return
receipt requested, four (4) Business Days after deposit in the United States
mail, or if by facsimile, when received (in each case unless otherwise specified
in this Agreement), (ii) if delivered by hand or overnight courier, when
receipted for, in each case addressed to them as follows or at such other
address as either of them may designate by written notice to the other in the
manner set forth in this Section 10.10; (x) any Borrower: c/o Lexington
Corporate Properties, Inc., 355 Lexington Avenue, New York, New York, Attention
: T. Wilson Elgin with a copy to John P. Howitt, Esq., Paul, Hastings, Janofsky
& Walker LLP, Thirty-First Floor, 399 Park Avenue, New York, NY 10022; or to (y)
Agent: Fleet National Bank, Suite 800,
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111 Westminster Street, Providence, Rhode Island 02903 Attention: Mark E.
Dalton, Vice President with a copy to Lorne W. McDougall, Esq., Edwards &
Angell, 101 Federal Street, Boston, MA 02110; or to (z) any Lender: at the
address set forth below each Lender's name on the signature pages hereof or the
signature page of any applicable Assignment and Acceptance.
(b) All payments on account of the Loans and the Note pursuant hereto or
pursuant to the other Loan Documents shall be made for the account of Lender at:
By mail: Fleet National Bank, 111 Westminster Street, Providence, Rhode Island,
02903-2305, Mail Code RIMO215. By wire: Fleet National Bank, Providence, Rhode
Island, ABA #011500010, Credit Account #9364958384, Re:
Lexington Attn: Christine Rioles (401)-278-6764.
(c) Notices to the Agent pursuant to Section 2 or 9 shall not be
effective until received by the Agent.
Any Lender may by written notice to Agent and Borrowers' Agent specify or change
its account and address for payment instructions hereunder.
10.11 NO WAIVERS; CUMULATIVE REMEDIES; ENTIRE AGREEMENT; HEADINGS. No
action, failure, delay or omission by, Agent or any Lender in exercising any
rights and remedies under this Agreement, any Note or any other Loan Document,
or otherwise, shall constitute a waiver of, or impair, any of the rights or
privileges of Agent or any Lender hereunder or thereunder. No single or partial
exercise of any such right or remedy shall preclude any other or further
exercise thereof or the exercises of any other right or remedy. Such rights and
remedies are cumulative and not exclusive of any rights and remedies provided by
law or otherwise available, including, but not limited to, rights to specific
performance (to the extent permitted by law) or any covenant or agreement
contained in this Agreement or any of the Loan Documents. No waiver of any such
right or remedy shall be effective unless given in writing or as otherwise
provided in Section 10.2. No waiver of any such right or remedy shall be deemed
a waiver of any other right or remedy hereunder or thereunder. Except as
otherwise specifically provided in this Agreement, every right and remedy given
by this Agreement or by applicable law to Agent or any Lender may be exercised
from time to time and as often as may be deemed expedient by Agent or any
Lender. This Agreement, each Note and the other Loan Documents constitute the
entire agreement of the parties relating to the subject matter hereof and
thereof and there are no verbal agreements relating hereto or thereto. Section
headings herein shall have no legal effect. This Agreement, each Note and the
other Loan Documents (including all covenants, representations, warranties,
privileges, rights, and remedies made or granted herein or therein) shall inure
to the benefit of, and be enforceable by Agent or any Lender and its respective
successors and assigns, except as otherwise expressly provided in this
Agreement. Borrowers may not directly or indirectly assign or transfer (whether
by agreement, by operation of law or otherwise) any of their rights or
obligations and liabilities hereunder without the prior written consent of Agent
or any Lender affected thereby. Subject to the provisions of Section 10.1, each
Lender may make, carry or transfer the Loans at, to or for the account of, any
of its branch offices or the office of one or more of its Affiliates.
10.12 SURVIVAL. The obligations of each Borrower under Sections 2.10,
2.13, 2.14, 2.15, 6.11, 10.13 and 10.15 (and all other indemnification and
expense reimbursement obligations of
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Borrower under this Agreement) shall survive the repayment of the Loans and the
cancellation of the Notes and the termination of the other obligations of such
Borrower hereunder and under the other Loan Documents for a period of three (3)
years after the date of such payment, except in the case of Section 6.11 and any
other indemnification obligations which shall survive for a period of five (5)
years; provided, however, that the Borrowers shall not be liable for any
liability, claim, loss, cost or expense arising from any act or omission of any
Lender or other indemnified party after the transfer of any Property by
foreclosure, deed-in-lieu thereof or otherwise which doesn't arise from or deal
with pre-existing conditions.
10.13 PAYMENT OF EXPENSES AND TAXES. Each Borrower agrees (a) to pay or
reimburse Agent within fifteen (15) Business Days after demand for all its
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement, the Notes and any other Loan Documents or other documents
prepared in connection herewith, and the consummation of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to Agent, (b) to pay or reimburse Agent,
within fifteen (15) Business Days after demand for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the Note and any Loan Documents, or the satisfaction or review
of conditions precedent to any borrowing other than that occurring on the
Closing Date, including, without limitation, reasonable fees and disbursements
of counsel to Agent and (c) to pay, indemnify, and to hold Agent and each
Lender, and their respective officers, directors, employees and agents harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the Notes, the Loan Documents
and any such other documents, and (d) to pay, indemnify, and hold Agent, and its
officers, directors, employees and agents harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement or the other Loan Documents except to the extent resulting
from the gross negligence or willful misconduct of such parties (all the
foregoing, collectively, the "INDEMNIFIED LIABILITIES").
10.14 FURTHER ASSURANCES. Each Borrower will, on request of Agent, (a)
promptly correct any defect, error or omission in any Loan Document; (b)
execute, acknowledge, deliver, procure, record or file such further instruments
and do such further acts deemed reasonably necessary, desirable or proper
by Agent to carry out the purposes of the Loan Documents and to identify and
subject to the liens and security interests of the Loan Documents any property
intended to be covered thereby, including any renewals, additions,
substitutions, replacements, or appurtenances to any such Property; (c) execute,
acknowledge, deliver, procure, file or record any document or instrument deemed
reasonably necessary, desirable, or proper by Agent to protect the Liens or the
security interests under the Loan Documents against the rights or interests of
third persons; and (d) provide such certificates, documents, reports,
information, affidavits and other instruments and do
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such further acts deemed reasonably necessary, desirable or proper by Agent to
comply with the requirements of any agency having jurisdiction over Agent.
10.15 NO BROKERS. Each Borrower hereby agrees to indemnify Agent and
each Lender from any liability, claim or loss arising by reason of claims for
any brokerage commission made by any Person claiming to have dealt with and
Borrower or any Affiliate of such Borrower in connection with the Loans. Agent
and each Lender agree to indemnify each Borrower from any liability, claim or
loss arising by reason of claims for any brokerage commission made by any Person
claiming to have dealt with Agent or any Lender in connection with the Loans.
The provisions of this Section shall survive the repayment of the Loan and shall
continue in full force and effect so long as the possibility of such liability
(including attorneys' fees), claim or loss exists.
10.16 CONFIDENTIALITY. Subject to Section 10.11, Agent and each Lender
shall hold all confidential information obtained pursuant to the requirements of
this Agreement in accordance with such party's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices and in any event may make disclosure reasonably required by a
bona fide offeree, transferee or participant in connection with the contemplated
transfer or participation or as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process and shall
require any such offeree, transferee or participant to agree (and require any of
its offerees, transferees or participants to agree) to comply with this Section
10.16. In no event shall Agent or any Lender be obligated or required to return
any materials furnished by any Borrower.
SECTION 11. THE BORROWERS' AGENT
11.1. APPOINTMENT OF AGENT.
(a) Each Borrower hereby irrevocably designates and appoints Lexington
(sometimes referred to in this Agreement as Borrowers' Agent), as its agent
under this Agreement and the Loan Documents and the other documents or
instruments delivered pursuant to or in connection herewith or therewith and
each Borrower hereby authorizes Lexington, for such Borrower, to take such
action on behalf of such Borrower under the provisions of the Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
Lexington or Borrowers' Agent by the terms of the Loan Documents, together with
such other powers as are reasonably incidental thereto.
(b) Agent or any Lender shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation reasonably believed
by it to be genuine and correct and to have been signed, sent or made by the
Borrowers' Agent in connection with this Agreement or any of the Loan Documents
and upon advice and statements of legal counsel (including, without limitation,
counsel to Borrowers), independent accountants and other experts selected by
Borrowers' Agent in connection with the Loan Documents.
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- the next page is the signature page -
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their proper and duly authorized officers as of the day and
year first above written.
BORROWERS: LENDERS:
LEXINGTON CORPORATE PROPERTIES, INC. FLEET NATIONAL BANK
By: By:
------------------------------- -------------------------
T. Wilson Eglin Mark E. Dalton
Its: President Vice President
LEPERCQ CORPORATE INCOME FUND L.P. KEYBANK NATIONAL ASSOCIATION
BY: LEX GP-1, Inc., its general partner
By: By:
--------------------- -------------------------
T. Wilson Eglin Michael D. Mitro
Its: President Vice President
LEPERCQ CORPORATE INCOME FUND II L.P. SIGNET BANK
BY: LEX GP-1, Inc., its general partner
By: By:
--------------------- -------------------------
T. Wilson Eglin John A. Schissel
Its: President Vice President
UNION HILLS ASSOCIATES ADMINISTRATIVE AGENT:
BY: Lepercq Corporate Income FLEET NATIONAL BANK
Fund, L.P., its general partner
By: Lex GP-1, Inc. its general partner
By:
-------------------------
Mark E. Dalton
By: Vice President
---------------------
T. Wilson Eglin
Its: President
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NORTH TAMPA ASSOCIATES LEX GP-1, INC.
BY: Lepercq Corporate Income Fund II, L.P.
its general partner By:
-----------------------
T. Wilson Eglin
By: Lex GP-1, Inc. its general partner Its: President
By:
------------------------
T. Wilson Eglin
Its: President
ACKNOWLEDGMENT BY BORROWERS' AGENT
We hereby acknowledge and accept the designation of Borrowers' Agent and
agree to discharge the duties and responsibilities of Borrowers' Agent as set
forth in the Loan Agreement until the Loans are paid in full.
LEXINGTON CORPORATE PROPERTIES, INC.
By:
---------------------------------
T. Wilson Eglin
Its: President
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EXHIBIT A
DEFINITIONS
"AGENT" means Fleet and each successor agent appointed pursuant
to the terms of Section 9 of this Agreement.
"AGREEMENT" means this Amended and Restated Revolving Credit
Agreement, as amended, supplemented or modified from time to time in accordance
herewith.
"AFFILIATE" means, with respect to a particular Person, (a) any
Person which, directly or indirectly, is in Control of, is Controlled by, or is
under common Control with such particular Person, or (b) any Person who is a
director or officer or trustee (i) of such particular Person, (ii) of any
Subsidiary of such particular Person or (iii) of any Person described in clause
(a) above.
"APPLICABLE RATE" shall have the meaning set forth in Section
2.5(a).
"APPRAISAL" means an appraisal which meets the requirements of
FIRREA and such other standards as Agent reasonably and customarily requires in
transactions of similar size and scope and performed by a Recognized Appraiser.
The form and substance of any Appraisal and the final determination of market
value is subject to review and approval by the Requisite Lenders.
"APPRAISED VALUE" of any Eligible Property shall mean the value
of such Eligible Property as set forth in the most recent Appraisal thereof
accepted by the Requisite Lenders. The Appraised Value of each of the Eligible
Properties as of the Closing Date is set forth on Exhibit P.
"APPROVED LEASE" shall mean a Lease with an Approved Tenant
having an unexpired term of not less than eight (8) years (except in the case of
the Arizona Property which has an unexpired term of not less than four (4)
years), covering not less than 80% of the net leaseable area of Property and
requiring the Approved Tenant to pay all or substantially all of the cost and
cost increases for real estate taxes, insurance, utilities, ordinary maintenance
and structural repairs and other customary operating expenses associated with
the Property and otherwise be reasonably acceptable in form and substance to the
Requisite Lenders at the time the Eligible Property to which it pertains is
accepted as Collateral. Any monetary obligation under an Approved Lease which is
more than 90 days delinquent shall cause such lease to automatically lose its
status as an Approved Lease. The initial Approved Leases are set forth on
Exhibit I.
"APPROVED TENANT" shall mean a tenant who at all times maintains
a Minimum Required Tenant Credit Rating or who is otherwise acceptable to the
Requisite Lenders in their sole and absolute discretion.
"ARIZONA PROPERTY" shall mean that certain Property located at
19019 North 59th Avenue, Glendale, Arizona.
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance in
substantially the form of Exhibit R attached hereto and made a part hereof (with
blanks appropriately completed) delivered to the Agent in connection with an
assignment of a Lender's interest under this Agreement in accordance with the
provisions of Section 10.1.
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"ASSIGNMENTS OF LEASES" means each of the Collateral Assignments
of Leases and Rents from time to time between Agent and any Borrower, each
substantially in the form of the Assignment of Leases delivered on the Closing
Date, as such Collateral Assignments of Leases and Rents may be amended,
supplemented or modified from time to time.
"BASE RATE" means a fluctuating interest rate per annum as shall
be in effect from time to time, which rate per annum shall at all times be equal
to the prime rate of interest announced by Agent from time to time, changing
when and as said prime rate changes.
"BASE RATE LOANS" means the portion of the Loans the interest on
which is computed by reference to the Base Rate.
"BORROWER" means any one of the Borrowers.
"BORROWERS" has the meaning set forth in the first paragraph
of this Agreement.
"BORROWERS' AGENT" shall mean Lexington.
"BORROWING" means a borrowing consisting of Loans made, continued
or converted or a Letter of Credit issued hereunder.
"BUILDINGS" means the buildings, structures and other
improvements now or hereafter located on the Properties.
"BUILDING SERVICE EQUIPMENT" means all apparatus, fixtures and
articles of personal property owned by a Borrower now or hereafter attached to
or used or procured for use exclusively in connection with the operation or
maintenance of any Building located on or included in the Properties, including,
but without limiting the generality of the foregoing, all engines, furnaces,
boilers, stokers, pumps, heaters, tank dynamos, motors, generators,
switchboards, electrical equipment, heating, plumbing, lifting and ventilating
apparatus, air-cooling and air-conditioning apparatus, gas and electric
fixtures, elevators, escalators, fittings, and machinery and all other equipment
of every kind and description, used or procured for use in the operation of the
Buildings (except apparatus, fixtures or articles of personal property belonging
to lessees or other occupants of such building or to persons other than the
Borrower unless the same be abandoned by any such lessee or other occupant or
person), together with any and all replacements thereof and additions thereto.
"BUSINESS DAY" means a day, in the applicable local time, which
is not a Saturday or Sunday or a legal holiday and on which banks are not
required or permitted by law or other governmental action to close (i) in
Providence, Rhode Island, and (ii) in the case of Eurodollar Loans, in London,
England, and (iii) in the case of Letter of Credit transactions for a particular
Issuing Bank, in the place where its office for issuance or administration of
the pertinent Letter of Credit is located.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, any
obligation of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real or personal property which
obligation is required to be classified or accounted for as a capital lease
obligation on a balance sheet of such Person prepared in accordance with GAAP
and, for purposes of
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this Agreement, the amount of such obligation at any date shall be the
outstanding amount thereof at such date, determined in accordance with GAAP.
"CASH EQUIVALENT" means (i) commercial paper rated P-1 or better
by Moody's Investors Service, Inc. or A-1 or better by Standard & Poor's
Corporation or similarly rated by any successor to either of such rating
services, (ii) obligations of the United States government or any agency thereof
which are backed by the full faith and credit of the United States, or (iii)
deposits, including certificates of deposit, in any commercial bank or trust
company (x) which is registered to do business in any state of the United
States, (y) which has capital and surplus in excess of $100,000,000 and (z)
whose short-term debt is rated A-1 or better by Standard & Poor's Corporation or
P-1 or better by Moody's Investor's Service, Inc. or is similarly rated by any
successor thereof, provided that each such item of commercial paper, each such
obligation, and each such time deposit has a maturity date not later than one
year after the date of purchase thereof.
"CLOSING DATE" means February ___, 1997.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" means any real or personal property or interest or
right subject to the mortgage or the lien and security interest of any of the
Security Documents, in each case whether or not any such mortgage, lien or other
security interest is perfected pursuant to applicable law.
"COMMISSION" means the United States Securities and Exchange
Commission or any successor to the responsibilities of such commission.
"COMMON SHARES" means Lexington's common shares.
"CONSOLIDATED" OR "CONSOLIDATED" means that term as applied to
the accounts of the Borrower's and their Subsidiaries, as the case may be, in
accordance with GAAP.
"CONSOLIDATING" OR "CONSOLIDATING" means that term as applied to
the accounts of the Borrowers, and their Subsidiaries, as the case may be, in
accordance with GAAP.
"CONTINGENT OBLIGATION" means, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("PRIMARY OBLIGATIONS") of any other Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the payment of, or the ability of the primary obligor
to make payment of, such primary obligation or (d) otherwise to assure or hold
harmless the owner of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount
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of the primary obligation in respect of which such Contingent Obligation 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
determined by such Person in good faith.
"CONTRACTUAL OBLIGATION" means, as to any Person, the Articles of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any provision of any security issued by such Person, or of any
agreement, instrument or undertaking to which such Person is a party or by which
it or any of its property is bound.
"CONTROL" (including with correlative meanings the terms
"Controlling", "Controlled by" and "under common Control with"), as applied to
any Person, means the possession of the power, direct or indirect, (i) to vote
51% or more of the securities or partnership interests having ordinary voting
power for the election of directors, trustees or the managing general partner(s)
of such Person, or (ii) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Liens pertaining to
violations of Environmental Laws and Liens in favor
of the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases
which are not yet due or which are being contested
in good faith by appropriate proceedings in
accordance with Section 6.23 and with respect to
which adequate reserves or other appropriate
provisions are being maintained in accordance with
GAAP;
(ii) Statutory Liens against any Property of any
Borrower or any of its Subsidiaries and Liens
against any Property of any Borrower or any of its
Subsidiaries in favor of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and
other Liens against any Property of such Borrower
or any of its Subsidiaries imposed by law created
in the ordinary course of business for amounts
which, if not resolved in favor of the Borrower or
such Subsidiary, could not result in a Material
Adverse Effect or which are being contested in good
faith by appropriate proceedings in accordance with
Section 5.23 and with respect to which adequate
reserves or other appropriate provisions are being
maintained in accordance with GAAP;
(iii) Liens (other than any Lien in favor of the
PBGC) which have been or will be bonded or released
of record within sixty (60) days after any Borrower
has received notice thereof or which are being
contested in good faith by appropriate proceedings
in accordance with Section 5.23;
(iv) Zoning restrictions, easements, licenses,
reservations, covenants, rights of way, utility
easements, building restrictions and other similar
charges or encumbrances on the use thereof which do
not interfere in any material respect with the
ordinary conduct of the business of the Borrower
who owns such Property or any tenant thereof or
access by the public to such Property;
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(v) Rights of existing and future tenants, as
tenants only, pursuant to Approved Leases; and
(vi) Such other title exceptions as Agent may
approve in writing in its sole discretion.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DEFAULT" means any of the events specified in Section 8.1,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"DEFAULTING LENDER" has the meaning set forth in Section 9.13.
"DESIGNATED LENDER" has the meaning set forth in Section
2.8(b)(vi).
"DOLLARS" or "$" shall mean lawful currency of the United
States of America.
"EBIDA" means, with respect to the Borrowers and their
Subsidiaries, for any period of time, without duplication of counting, the sum
of (i) the net income from operations on a consolidated basis (determined in
accordance with GAAP for such period), plus (ii) depreciation, plus (iii)
amortization, plus (iv) to the extent deducted from gross income to calculate
net income from operations, Interest Charges on a consolidated basis for such
period excluding (v) any gains or losses for such period from the sale of assets
(on a tax effected basis) outside the ordinary course of business and any other
extraordinary gains, or losses. It is acknowledged and agreed that for the
purposes of calculating EBIDA with respect to Properties acquired or sold, EBIDA
will be adjusted to include or exclude (as appropriate) that Property's
contribution on a historical or pro forma basis reasonably acceptable to Agent.
"ELIGIBLE ASSIGNEE" means (i) a Lender or any Affiliate thereof;
(ii) a commercial bank having total assets in excess of $2,500,000,000; (iii)
the central bank of any country which is a member of the Organization for
Economic Cooperation and Development; or (iv) a finance company or other
financial institution acceptable to the Agent, which is regularly engaged in
making, purchasing or investing in loans and having total assets in excess of
$2,000,000,000 and in the case of subclause (ii), (iii) and (iv) of this defined
term is otherwise acceptable to the Agent.
"ELIGIBLE PROPERTY" has the meaning set forth in Section 2.16.
"ELIGIBLE PROPERTY APPLICATION" shall mean a written request from
the Borrowers' Agent to the Agent to designate any Property as an Eligible
Property. Such request shall be accompanied by the following, all of which must
be in form and substance reasonably acceptable to the Requisite Lenders:
(i) detailed statements of income and expenses for
the prior two years (if available);
(ii) pro forma operating statements for the next
eight years;
(iii) copies of all Leases and ground leases
executed in connection with the Property;
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(iv) a business and credit history for each tenant
of the Property;
(v) an Environmental Report;
(vi) a physical and structural inspection report in
form and substance and prepared by an engineer or
consultant reasonably acceptable to Agent;
(vii) a rent roll certified with a schedule of the
aging of rent payments and identifying whether any
tenant is no longer in occupancy;
(viii) a Survey;
(ix) an Appraisal; and
(x) such other documentation as Agent customarily
requires in similar transactions.
All of the foregoing is subject to review and approval by the Requisite Lenders.
Upon the receipt of notice from the Agent that such property has been approved
as an Eligible Property it shall thereafter continue to be designated as an
Eligible Property and its owner as a Borrower so long as such Property and its
owner meet the requirements of Section 2.16 (a) and (c).
"ELIGIBLE PROPERTY NOI" means, for any period, Eligible Property Income
minus Eligible Property Expenses. For such purposes:
(A) "Eligible Property Income" means, for the applicable
period the revenues received from the operation of the Eligible Property,
limited to base rent plus reimbursement of taxes and operating expenses and
similar items of additional rent payable under applicable leases, but excluding
security and other deposits held in reserve or trust, percentage rent and income
generated from services rendered to third parties, all as determined in
accordance with generally accepted accounting principles except that any rent
leveling adjustments shall be deducted from rental income; and
(B) "Eligible Property Expenses" means for the applicable
period all operating expenses incurred in connection with or relating to the
operation of such Eligible Property, but shall (i) exclude interest expense;
(ii) exclude depreciation and other non-cash expenses; (iii) exclude capital
expenditures or any other items which would not be treated as operating expenses
under GAAP; (iv) include an accrual for management fees equal to the greater of
(a) three percent (3%) of gross revenues from such Eligible Property or (b) the
actual management fees; and (v) include periodic expenses (such as but not
limited to property taxes, insurance, utilities, routine maintenance and
repairs).
"ENVIRONMENTAL LAWS" means all statutes, ordinances, orders, rules and
regulations relating to environmental matters, including, without limitation,
those relating to fines, orders, injunctions, penalties, damages, contribution,
cost recovery compensation, losses or injuries resulting from the Release or
threatened Release of Hazardous Materials and to the generation, use, storage,
transportation, or disposal of Hazardous Materials, in any manner applicable to
Borrower, any tenant
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or any of their respective Subsidiaries or any of their respective properties,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.), the Hazardous
Material Transportation Act (49 U.S.C. Section 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act
(42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. Section
651 et seq.) and the Emergency Planning and Community Right-to-Know Act (42
U.S.C. Section 11001 et seq.), each as amended or supplemented, and any
analogous future or present local, state and federal statutes and regulations
promulgated pursuant thereto, each as in effect as of the date of determination.
"ENVIRONMENTAL REPORT" means a report meeting the requirements
of Section 5.1(s).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means (i) any corporation which is a member of
a controlled group of corporations within the meaning of Section 414(b) of the
Code of which any Borrower is a member; (ii) any trade or business (whether or
not incorporated) which is a member of a group of trades or businesses under
common control within the meaning of Section 414(c) of the Code of which any
Borrower is a member; and (iii) any member of an affiliated service group within
the meaning of Section 414(m) or (o) of the Code of which any Borrower, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member.
"ESTIMATED MARKET VALUE" means the EBIDA for the Borrowers on a
consolidated basis based on the most recent four fiscal quarters divided by the
greater of (i) 10% or (ii) the 10-year Treasury bond rate on the date of
calculation plus 2%.
"EURODOLLAR BASE" means the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) shown on the display referred to as the
"LIBO page" (or any display substituted therefor) of the Reuters U.S. Domestic
Money Service transmitted through the Reuters monitor system as being the
respective rates at which U.S. dollar deposits would be offered two (2) Business
Days prior to the beginning of the relevant Interest Period by the principal
London offices of each of the banks named thereon to major banks in the London
interbank Eurodollar market at the relevant local time for delivery on the first
day of such Interest Period for the number of days comprised therein and in the
amount of the then outstanding Eurodollar Loans.
"EURODOLLAR LOANS" means the portion of the Loans the interest on
which is computed by reference to the Eurodollar Rate.
"EURODOLLAR RATE" means, with respect to each Interest Period,
the rate per annum equal to the sum of (A) the Eurodollar Base for such Interest
Period divided by (ii) a percentage equal to one hundred percent (100%) minus
the maximum reserve percentage applicable during such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (the "Board") for determining the maximum reserve requirements
(including, without limitation, any basic, supplemental, marginal or emergency
reserve requirements) for the Agent in
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respect of liabilities (as defined in Regulation D of the Board) having a term
equal to the Interest Period; plus (B) one and one-half percent (1-1/2%).
"EXCESS OUTSTANDINGS" shall have the meaning set forth in Section
2.6(c).
"EXCLUDED TAXES" means income or franchise taxes of any Lender,
any branch office of any Lender or any participant or assignee of any Lender
imposed by the United States of America or any political subdivision or taxing
authority thereof or therein or by any jurisdiction in which the lending office
of any Lender is located or in which such Lender is organized or has its
principal or registered office.
"EXTENSION REQUEST" shall have the meaning set forth in Section
2.3(d).
"EVENT OF DEFAULT" means any of the events specified in Section
8.1, provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"FEDERAL FUNDS EFFECTIVE RATE" means for any day, a fluctuating
interest rate per annum equal 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 preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for such day on such transactions received by the
Lender from three (3) Federal funds brokers of recognized standing selected by
the Lender.
"FEE INTEREST" means any land and any Buildings, structures,
improvements and fixtures owned in fee simple by a Borrower and equipment
located thereon or used in connection therewith and all personality related
thereto and all other real estate interests, owned beneficially by Borrower.
"FINANCING STATEMENTS" means UCC-1 financing statements or
comparable instruments, as required in any jurisdiction, for filing at the local
and/or state level with respect to any personal property that is a part of any
Property, each duly executed by the appropriate Borrower and, if required in any
jurisdiction, Agent.
"FIRREA" means the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"FLEET" shall mean Fleet National Bank, its successors and
assigns.
"FUNDING DATE" means with respect to any Loan, the date of
funding of such Loan.
"FUNDS FROM OPERATIONS" shall mean with respect to any fiscal
period of a Borrower, an amount equal to net income of such Borrower (computed
in accordance with generally accepted accounting principles), excluding gains
(or losses) from debt restructuring and/or investment in marketable securities
(before benefits for income taxes), plus depreciation and amortization, and
after adjustments for unconsolidated partnerships and joint ventures. The
adjustments for
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unconsolidated partnerships and joint ventures will be calculated to reflect
funds from operations on the same basis.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements by the
Financial Accounting Standards Board or in such other statement by such other
entity as may be in general use by significant segments of the accounting
profession, as in effect on the Closing Date; and the requirement that such
principles be applied on a consistent basis shall mean that the accounting
principles observed in a current period are comparable in all material respects
to those applied in a preceding period.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled (through stock or capital ownership or otherwise) by any of the
foregoing.
"GROUND LEASE" means any ground lease covering a Property under
which any Borrower is the ground lessee.
"HAZARDOUS MATERIAL" means (i) any chemical, material or
substance defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous waste,"
"restricted hazardous waste," or "toxic substances" or any other formulations
intended to define, list or classify substances by reason of deleterious
properties under any applicable Environmental Laws, (ii) any oil, petroleum or
petroleum derived substance, any drilling fluids, produced waters and other
wastes associated with the exploration, development or production of crude oil,
any flammable substances or explosives, any radioactive materials, any toxic
wastes or substances or any other materials or pollutants which (a) pose a
hazard to any property of any Borrower, or any Subsidiaries or to Persons on or
about such property or (b) cause such property to be in violation of any
Environmental Laws, (ii) asbestos in any form which is or could become friable,
urea formaldehyde foam insulation, electrical equipment which contains any oil
or dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million, and (iv) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Governmental
Authority or may or could pose a hazard to the health and safety of the owners,
occupants or any Persons surrounding the Properties.
"HOLDER" means any Person entitled to enforce any of the
Obligations, whether or not such Person holds any evidence of Indebtedness,
including, without limitation, the Agent, each Lender and each Issuing Bank.
"INDEBTEDNESS" means, with respect to any Person, and without
duplication, all indebtedness, obligations and other liabilities of such Person
as determined in accordance with GAAP.
"INITIAL FUNDING DATE" means the date on or before February __,
1997, on which all of the conditions described in Section 5.1 have been
satisfied (or waived) in a manner satisfactory to the Agent and the Lenders and
on which the initial Loans under this Agreement are made by the Lenders to the
Borrowers' Agent.
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"INSOLVENCY EVENT" with respect to any Person, means that (i)
such Person shall have suspended or discontinued its business or commenced any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or such Person shall
have made a general assignment for the benefit of its creditors; or (ii) there
shall have been commenced against such Person any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 90 days; or (iii)
there shall have been commenced against such Person any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or substantially all of its assets, which results
in the entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 90 days from the entry
thereof; or (iv) such Person shall have taken any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii) or (iii) above; or (v) such Person shall generally not
be paying, or shall have been unable to pay, or shall have admitted in writing
its inability to pay, its debts as they become due.
"INTEREST CHARGES" of a Person for any period means the sum of
(i) the aggregate interest accrued and payable in cash, securities or otherwise
on all Indebtedness of such Person and its Affiliates or Subsidiaries, if any,
on a consolidated basis for such period, plus (ii) the aggregate amount of debt
discount or other amounts analogous to interest accruing during or attributable
to such period, whether or not payable during such period, including without
limitation all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and net costs
under (a)(i) interest rate swap agreements, interest rate collar agreements, and
(ii) other agreements or arrangements designed to protect such Person and/or its
Affiliates or Subsidiaries against fluctuations in interest rates; and (b)
foreign exchange contracts and other agreements or arrangements designed to
protect such Person and/or its Affiliates or Subsidiaries against fluctuations
in currency values, all amounts calculated above to be determined in conformity
with GAAP.
"INTEREST PAYMENT DATE" means the first day of each calendar
month during the term of the Loans.
"INTEREST PERIOD" is defined in Section 2.5(a).
"INTEREST RATE DETERMINATION DATE" means each date for
calculating the Base Rate or the Eurodollar Rate for a Loan or the
continuation/conversion thereof. The Interest Rate Determination Date shall be
the second Business Day prior to the first day of the related Interest Period
for a Eurodollar Loan and the date of calculation in the case of a Base Rate
Loan.
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"ISSUING BANK" means Fleet unless Fleet is unable or unwilling to
issue a Letter of Credit, in which event Agent shall select another Lender in
writing to act as an "Issuing Bank" for the purpose of issuing Letters of Credit
pursuant to Section 3.1.
"LEASEHOLD INTERESTS" means any leasehold estate in any land
and/or any buildings, structures, improvements and fixtures owned beneficially
by a Borrower and all equipment located thereon or used in connection therewith
and all personality (including, without limitation, franchises) related thereto,
owned beneficially by a Borrower.
"LEASE OR LEASES" means a lease (other than a Ground Lease),
sublease under which a Borrower is the lessor or sublessor, license, concession
agreement or other agreement providing for the use or occupancy of any portion
of any Property, including all amendments, supplements, modifications and
assignments thereof and all side letters or side agreements relating thereto.
"LENDER" means, each financial institution a signatory hereto as
a Lender and each Eligible Assignee which becomes a party hereto as a Lender,
whether as a signatory hereto or pursuant to an Assignment and Acceptance.
"LETTER OF CREDIT" means any Letter of Credit issued by an
Issuing Bank pursuant to Section 3.1 for the account of any Borrower and any
amendments thereto or extensions thereof.
"LETTER OF CREDIT FEE" is defined in Section 2.14(b).
"LETTER OF CREDIT OBLIGATIONS" means, at any particular time, the
sum of (i) all outstanding Reimbursement Obligations, plus (ii) the aggregate
undrawn face amount of all outstanding Letters of Credit, plus (iii) the
aggregate face amount of all Letters of Credit requested by any Borrower but not
yet issued.
"LETTER OF CREDIT REIMBURSEMENT AGREEMENT" means, with respect to
a Letter of Credit, such form of application therefor and form of reimbursement
agreement therefor (whether in a single or several documents, taken together) as
the Issuing Bank from which the Letter of Credit is requested may employ in the
ordinary course of business for its own account, with such modifications thereto
as may be agreed upon the Issuing Bank and the Borrowers' Agent and are not
materially adverse (in the judgment of the Issuing Bank and Agent) to the
interests of the Lenders; provided, however, in the event of any conflict
between the terms of any Letter of Credit Reimbursement Agreement and this
Agreement, the terms of this Agreement shall control.
"LEXINGTON" means Lexington Corporate Properties, Inc.
"LIEN" means any mortgage, lien, pledge, adverse claim, charge,
security interest or other encumbrance in or on, any Property or any interest
therein including, without limitation, any conditional sale or other title
retention agreement or Capitalized Lease Obligation or the signing or filing of
a financing statement or the signing of any security agreement authorizing any
other party as the secured party thereunder to file any financing statement.
"LOANS" (AND SINGULARLY, A "LOAN") is defined in Section 2.1(a).
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"LOAN ACCOUNT" is defined in Section 2.2(b).
"LOAN DOCUMENTS" means, collectively, this Agreement, the Note,
the Environmental Indemnity and Agreement, the Security Documents and all other
agreements, documents or instruments delivered pursuant to or in connection with
any of the foregoing, as such agreements, documents or instruments may be
amended, modified or supplemented from time to time.
"MAC" means, with respect to the Borrowers as a whole or any
Eligible Property any material adverse change in the business, operations,
assets, prospects or financial condition or other condition of such Borrowers or
Eligible Property.
"MADSC AMOUNT" shall be calculated as follows: Eligible Property
NOI for the Eligible Properties for the most recent four fiscal quarters (the
"Measuring Period") divided by 1.6 = Maximum Assumed Debt Service. Maximum
Assumed Debt Service divided by 12 = Maximum Assumed Monthly Debt Service.
Maximum Assumed Monthly Debt Service divided by Monthly Debt Service Constant =
MADSC Amount. The Monthly Debt Service Constant shall be the percentage
necessary to fully amortize $1.00 at an annual interest rate equal to the 10
year U.S. Treasury bond rate on the date of calculation plus 2.25% over a 240
month amortization schedule. It is acknowledged and agreed that for purposes of
calculating Eligible Property NOI with respect to any Eligible Property acquired
by a Borrower during the Measuring Period, net operating income for such
property shall include net operating income for the property during the entire
Measuring Period prior to the date of acquisition of such property by the
applicable Borrower. Eligible Property NOI for any Eligible Property for which
four (4) full quarters of operating information is not available or is not
indicative of the current operations of such property (including any newly
constructed property or other property in the lease-up period) shall be
calculated on (a) a pro forma basis based upon net operating income for the most
recent quarter or portion thereof in the case of an existing property or (b) on
a pro-forma basis reasonably acceptable to Agent in the case of a sale-leaseback
or new construction.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon
(a) the business, operations, assets, prospects or financial condition or other
condition of the Borrowers as a whole or any Eligible Property, (b) the ability
of the Agent to enforce any of the Loan Documents, or (c) the ability of the
Borrowers to perform their obligations under the Loan Documents.
"MAXIMUM AVAILABILITY" means as of any date of determination the
lesser of (i) the Revolving Credit Commitments in effect on such date; (ii) 60%
of the Appraised Value of Eligible Properties; (iii) the MADSC Amount and (iv)
the net present value of projected Eligible Property NOI from all Eligible
Properties on a monthly basis from Approved Leases currently in place for the
next ten calendar years (beginning the January 1st following the date of
calculation) based on an interest rate equal to the 10-year U.S. Treasury bond
rate on the date of calculation plus 0.5%.
"MINIMUM ESTIMATED NET WORTH" means Estimated Market Value plus
unrestricted cash or Cash Equivalents less Total Liabilities. Investments in
unconsolidated affiliates shall be included at the lesser of cost or fair market
value. All Contingent Obligations and Indebtedness attributable to
unconsolidated affiliates shall be excluded in determining net worth.
"MINIMUM REQUIRED TENANT CREDIT RATING" shall have the meaning
set forth in Section 2.16 (a)(iii).
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"MORTGAGES" (AND SINGULARLY, A "MORTGAGE") means each of the
Mortgages and Security Agreements, Deeds of Trust and Security Agreements, or
Deeds to Secure Debt and Security Agreements, or other similar documents as
applicable in the particular jurisdiction where the Property covered by such
instrument is located, from time to time made by any Borrower in favor of the
Agent for the benefit of each Lender under the terms of this Agreement or which
was executed under the Original Agreement and modified in connection with this
Agreement, each substantially in the form of the Mortgages delivered or existing
on the Closing Date, as such agreements may be amended, modified or supplemented
from time to time.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which Borrower or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means an employee benefit plan, other
than a Multiemployer Plan, subject to Title IV of ERISA to which Borrower or any
ERISA Affiliate, and at least one employer other than Borrower or an ERISA
Affiliate, is making or accruing an obligation to make contributions or, in the
event that any such plan has been terminated, to which Borrower or any ERISA
Affiliate made or accrued an obligation to make contributions during any of the
five plan years preceding the date of termination of such plan.
"NET PROPERTY PROCEEDS" means, with respect to any Property (a)
the gross proceeds received by or for the account of a Borrower from any sale,
lease or other disposition of such Property, minus the reasonable out-of-pocket
fees and expenses incurred by Borrower in connection with such sale or other
disposition, (b) all insurance proceeds paid and received by or for the account
of such Borrower net of reasonable settlement and collection costs and expenses
and on account of the loss of or damage of any such Property, to the extent such
proceeds are not applied to the replacement or restoration of such assets and
(c) all proceeds received by or for the account of such Borrower, arising from
the taking by condemnation or eminent domain of any such Property, to the extent
such proceeds are not applied to the replacement or restoration of such assets.
"NET SECURITIES PROCEEDS" with respect to any private or public
offering of securities means the gross proceeds thereof received by or for the
account of Lexington net of (a) underwriting discounts and commissions and (b)
reasonable out-of-pocket fees and expenses incurred in connection with such
offering or borrowing.
"NON-DISTURBANCE AGREEMENTS" means each of the Subordination,
Non-Disturbance and Attornment Agreements from time to time between Agent and
the tenants of the Properties, each substantially in the form of the
subordination, non-disturbance and attornment agreements delivered in connection
with the Original Agreement with respect to the existing Eligible Properties
with such modification as Agent may reasonably request or approve, as such
Subordination, Non-Disturbance and Attornment Agreements may be amended,
modified or supplemented from time to time.
"NON PRO RATA LOAN" is defined in Section 2.8(b)(v).
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"NOTE" means a promissory note in the form attached hereto as
Exhibit B payable to a Lender, evidencing certain of the Obligations of each
Borrower to such Lender and executed by the Borrowers as required by Section
2.2, as the same may be amended, supplemented, modified or restated from time to
time; "NOTES" means, collectively, all of such Notes outstanding at any given
time.
"NOTICE OF BORROWING" means a notice substantially in the form of
Exhibit C hereto delivered by Borrowers' Agent to Agent pursuant to Sections 2.3
or 3.1 with respect to a proposed Borrowing.
"NOTICE OF CONTINUATION/CONVERSION" means a notice substantially
in the form of Exhibit F hereto delivered by Borrower to Lender pursuant to
Section 2.5 with respect to a continuation or conversion of one or more Loans.
"OBLIGATIONS" mean all Outstanding Amounts, Loans, advances,
debts, liabilities, obligations, covenants and duties owing by any Borrower to
the Agent, any Lender, any Issuing Bank, any Affiliate of the Agent, Lender or
any Issuing Bank, or any Person entitled to indemnification pursuant to Section
9.6 or any other provision of this Agreement, of any kind or nature, arising
under this Agreement, the Notes or any other Loan Document. The term includes,
without limitation, all interest, charges, expenses, fees, reasonable attorneys'
fees and disbursements and any other sum chargeable to any Borrower under this
Agreement or any other Loan Document.
"ORIGINAL AGREEMENT" shall have the meaning set forth in the
first Whereas clause of the Agreement.
"OUTSTANDING AMOUNT" means, as of any date as of which the amount
thereof shall be determined, the aggregate outstanding principal amount of the
Loans, and the aggregate Letters of Credit outstanding.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor to the
responsibilities of such corporation.
"PERMIT" shall have the meaning set forth in Section 2.16(b).
"PERMITTED EXCEPTIONS" means those exceptions to title set forth
on Exhibit H.
"PERSON" means any natural person, corporation, limited liability
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
"PLAN" means an employee benefit plan, other than a
Multiemployer Plan, maintained for or covering any employees of Borrower or any
ERISA Affiliate and subject to Title IV of ERISA.
"PROPERTY" OR "PROPERTIES" means any real estate that constitutes
Collateral for the Loans (including Eligible Property that no longer constitutes
Eligible Property) unless released in accordance with Section 2.17 hereof.
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"PRO RATA SHARE" means, with respect to any Lender, the
percentage obtained by dividing (i) such Lender's Revolving Credit Commitment
(in each case, as adjusted from time to time in accordance with the provisions
of this Agreement or any Assignment and Acceptance to which such Lender is a
party) by (ii) the aggregate amount of all of the Revolving Credit Commitments
then outstanding.
"PROTECTIVE ADVANCE" means all sums expended as determined by
Agent to be necessary to: (a) protect the priority, validity and enforceability
of the Liens on, and security interests in, any Collateral and the instruments
evidencing or securing the Obligations, or (b) (i) prevent the value of any
Collateral from being materially diminished (assuming the lack of such a payment
within the necessary time frame could potentially cause such Collateral to lose
value), or (ii) protect any of the Collateral from being materially damaged,
impaired, mismanaged or taken, including, without limitation, any amounts
expended in accordance with Section 9.10 or post-foreclosure ownership,
maintenance, operation or marketing of any Property.
"REAL PROPERTY" has the meaning set forth in Section 6.11.
"RECOGNIZED APPRAISER" means an independent, qualified and
recognized professional appraiser selected and retained by Lender having at
least five years' prior experience in performing real estate appraisals in the
geographic area where the property being appraised is located, and meeting any
qualifications required by FIRREA.
"REIMBURSEMENT DATE" has the meaning set forth in Section 3.1(d).
"REIMBURSEMENT OBLIGATIONS" means the aggregate outstanding
noncontingent reimbursement or repayment obligations of any Borrower with
respect to amounts drawn under the Letters of Credit which are not paid with
Loan advances hereunder.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, leaching
or migration of any Hazardous Materials into the indoor or outdoor environment
(including, without limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Materials), or
into or out of any facility, including the movement of any Hazardous Material
through the air, soil, surface water, groundwater or property.
"REPLACEMENT RESERVE" has the meaning ascribed to it in Section
6.17.
"REPORTABLE EVENT" means a "reportable event" within the meaning
of Section 4043 of ERISA (other than a "reportable event" for which the 30-day
notice to PBGC requirement has been waived by regulation).
"REQUIREMENTS OF LAW" means, as to any Person, any law, treaty,
rule or regulation, or judgment, order, directive or other determination of any
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its properties or to which such Person
or any of its property is subject.
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"REQUISITE LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are at least fifty-one percent (51%); provided, however, that, in the
event any of the Lenders shall have failed to fund its Pro Rata Share of any
Loan requested by the Borrowers' Agent which such Lender is obligated to fund
under the terms of this Agreement and any such failure has not been cured as
provided in Section 2.8(b)(v)(B), then for so long as such failure continues,
"Requisite Lenders" means Lenders (excluding all Lenders whose failure to fund
their respective Pro Rata shares of such Loans have not been so cured) whose Pro
Rata Shares represent at least fifty-one percent (51%) of the aggregate Pro Rata
Shares of such non-defaulting Lenders; provided, further, however, that, in the
event that the Revolving Credit Commitments have been terminated upon the
occurrence and during the continuance of an Event of Default pursuant to the
terms of this Agreement, "Requisite Lenders" means Lenders (without regard to
such Lenders' performance of their respective obligations hereunder) whose
aggregate ratable shares (stated as a percentage) of the aggregate outstanding
principal balance of all Loans are at least fifty-one percent (51%).
"RESPONSIBLE OFFICER" means the president, an executive vice
president, vice president or treasurer of the applicable Borrower or Borrowers'
Agent.
"RESTRICTED PAYMENT" means (a) every dividend or other
distribution of assets, properties, cash, rights, obligations or securities
paid, made, declared or authorized by Lexington in respect of any of its
partnership interests, Common Shares, or other equity securities, or any class
of partnership interests or equity securities, or for the benefit of holders of
any thereof in their capacity as such in excess of the amount necessary to
maintain Lexington's REIT status and (b) every payment by or for the account of
Borrower or any of its Affiliates or Subsidiaries in connection with the
redemption, purchase, retirement, defeasance or other acquisition of any
partnership interests (except for the exchange of limited partnership interests
for Common Shares of Lexington), Common Shares, Preferred Shares or other equity
securities of any Borrower or Lexington or options, warrants or other rights to
acquire any of Borrowers' partnership interests or Lexington's equity securities
and (c) every payment (i) of principal, interest, fees or other amounts in
respect of any Indebtedness of any Borrower to any Affiliate or Subsidiary of
such Borrower or (ii) in respect of the redemption, purchase, retirement,
defeasance, or other acquisition from an Affiliate or Subsidiary of any Borrower
of any Indebtedness of such Borrower, and (d) every direct or indirect
investment by any Borrower (by means of capital contribution, advance, loan or
otherwise) in an Affiliate or Subsidiary or any Person which becomes an
Affiliate or Subsidiary after or as a result of such investment, and (e) every
payment by or for the account of such Borrower or and of its Affiliates or
Subsidiaries in connection with the redemption, purchase, retirement, defeasance
or other acquisition for value, directly or indirectly, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment, of Indebtedness
which is subordinate in right of payment to the Loans or the Note.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time,
the amount by which the Maximum Availability at such time exceeds the
Outstanding Amount at such time.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Lender,
the obligation of such Lender to make Loans and to participate in Letters of
Credit pursuant to the terms and conditions of this Agreement, and which shall
not exceed the principal amount set forth opposite such Lender's name under the
heading "REVOLVING CREDIT COMMITMENT" on the signature pages hereof or the
signature page of the Assignment and Acceptance by which it became a Lender, as
modified from
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time to time pursuant to the terms of this Agreement or to give effect to any
applicable Assignment and Acceptance, and "REVOLVING CREDIT COMMITMENTS" means
the aggregate principal amount of the Revolving Credit Commitments of all the
Lenders, the maximum amount of which shall be $60,000,000.
"REVOLVING CREDIT TERMINATION DATE" means the earlier to occur of
(i) June 1, 1999 (subject to the extensions available under Section 2.1) (or, if
not a Business Day, the next preceding Business Day) and (ii) the date as of
which the outstanding principal amount of the Loan shall become due and payable
by acceleration after the occurrence and during the continuance of an Event of
Default.
"SECURITY DOCUMENTS" means, collectively, the Mortgages, the
Assignments of Leases, the Financing Statements, the Non-Disturbance Agreements,
and any other agreements, instruments or documents securing or purporting to
secure the obligations of any Borrower hereunder or under the Original Agreement
which are modified in connection with this Agreement from time to time, and any
agreements and any instruments or documents delivered pursuant to or in
connection with any of the foregoing, as such agreements, instruments or
documents may be amended, supplemented or modified from time to time.
"SERVICE AGREEMENTS" mean all material service agreements
between any Borrower and third parties, whether written or oral, relating to the
operation and maintenance, of the Properties.
"SOLVENT" means, with respect to any Person on a particular date,
that on such date (i) the fair value of the property of such Person is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person (whether or not required to be reflected on a
balance sheet prepared in accordance with GAAP), (ii) the present fair salable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (iii) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (iv) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (v) such Person is not engaged in business or a transaction for
which such Person's property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which
such Person is engaged. In computing the amount of contingent liabilities at any
time, it is intended that such liabilities will be computed at the amount which,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"STANDBY FEE" is defined in Section 2.14.
"SUBSIDIARY" means, as to any Person, a partnership, corporation
or other entity of which ownership interest having ordinary voting power (other
than interest having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly, through one or more intermediaries, or both,
by such Person.
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"SURVEY" means an as-built survey prepared by a licensed
surveyor, in form and substance reasonably satisfactory to Agent, which shall,
in each case be dated as of a date not more than 60 days previously, be
certified (with a certification in form and substance approved by Agent) to
Agent and be made in accordance with the Minimum Standard Detail Requirements
for Land Title Surveys jointly established and adopted by the American Land
Title Association and the American Congress on Surveying and Mapping, and,
without limiting the generality of the foregoing, there shall be surveyed and
shown on such survey the following: (A) through the use of course bearings and
distances, the full legal descriptions of such Eligible Property; (B) the
locations of all the buildings, structures and other improvements and all
dimensions thereof, and the established building setback lines; (C) the lines of
streets abutting the sites and width thereof; (D) all access and other easements
and appurtenances necessary or desirable to use such property; (E) all roadways,
paths, driveways, rights of way, deviations between survey lines and title
lines, easements, encroachments and overhanging projections and similar
encumbrances affecting such property, whether recorded, apparent from a physical
inspection of such property or otherwise known to the surveyor; (F) any
encroachments on any adjoining property by the building structures and
improvements on such property; (G) if such property is described as being on a
filed map, a legend relating the survey to said map and (H) flood zones where
applicable.
"TERMINATION EVENT" means (i) a Reportable Event or an event
described in Section 4062(e) of ERISA, or (ii) the withdrawal of Borrower or any
ERISA Affiliate from a Multiple Employer Plan during a plan year in which it was
a "substantial employer", as such term is defined in Section 4001(a)(2) of
ERISA, or the incurrence of liability by Borrower or any ERISA Affiliate under
Section 4064 of ERISA upon the termination of a Multiple Employer Plan, (iii)
the filing of a notice of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, (iv) the institution of
proceedings to terminate a Plan by the PBGC under Section 4042 of ERISA, (v) the
withdrawal of Borrower or any ERISA Affiliate from any Multiemployer Plan, or
(vi) any other event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"TITLE INSURANCE COMPANY" shall mean Lawyers Title Insurance
Company or such other national title insurance company as may be reasonably
acceptable to Agent.
"TITLE POLICY" shall mean an ALTA standard form title insurance
policy or policies issued by the Title Insurance Company to the Agent (with such
reinsurance or co-insurance as the Agent may require, any such reinsurance to be
with direct access endorsements) in an aggregate amount not less than an amount
satisfactory to the Agent, which amount shall not be less than the lesser of (i)
$60,000,000 or (ii) the Maximum Availability plus $3,000,000 with respect to all
of the Eligible Properties, insuring the priority of the Mortgages and
Assignment of Leases and Rents and that the Borrower which owns such Property
holds good and clear record marketable fee simple or leasehold title to the
Property, subject only to the Permitted Exceptions (and subclause (iv) of the
definition of Customary Permitted Liens) and which shall not contain exceptions
for mechanics liens, persons in occupancy other than tenants who have executed
Nondisturbance Agreements or matters which would be shown by a survey (other
than matters approved by Lender in its reasonable discretion), shall not insure
over any matter except to the extent that any such affirmative insurance is
acceptable to Agent in its reasonable discretion, and shall contain such
endorsements and affirmative insurance as the Agent in its reasonable discretion
may require, including but not limited to (a) comprehensive endorsement, (b)
variable rate of interest endorsement, (c) usury endorsement or a legal opinion
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reasonably satisfactory to Agent regarding usury matters, (d) revolving credit
endorsement, (e) ALTA form 3.1 zoning endorsement with a separate endorsement
thereof for parking or a legal opinion or other evidence reasonably satisfactory
to Agent regarding zoning matters, (f) tie-in endorsement, (g) a first loss
endorsement, (h) a "gap" endorsement and (i) a pending disbursements
endorsement, all in form satisfactory to Agent.
"TOTAL LIABILITIES" of any Person means and includes, as of any
date as of which the amount thereof is to be determined, without duplication (i)
all items which in accordance with GAAP would be required to be included as
liabilities on a consolidated balance sheet of such Person at such date and (ii)
to the extent not otherwise included in (i) above, all Indebtedness of such
Person as of such date, determined on a consolidated basis.
"UCC SEARCH" means, in respect of each Property, a search no more
than one month old as at the date of determination by a Person satisfactory to
Lender, of the Uniform Commercial Code filings which may have been filed in each
location where any Property is located or where Borrower does business or is
domiciled.
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EXHIBIT B
FORM OF AMENDED AND RESTATED PROMISSORY NOTE
$______________________ Dated: February __, 1997
FOR VALUE RECEIVED, the undersigned, LEXINGTON CORPORATE PROPERTIES,
INC.; LEPERCQ CORPORATE INCOME FUND L.P.; LEPERCQ CORPORATE INCOME FUND II L.P.;
UNION HILLS ASSOCIATES; NORTH TAMPA ASSOCIATES; and LEX GP-1, INC.
(collectively, the "Borrowers" and individually a "Borrower") HEREBY PROMISE TO
PAY, jointly and severally, to the order of _____________ (the "Lender"), the
lesser of (a) ______________________________ DOLLARS ($___________) or (b) the
aggregate principal amount then outstanding of the Loans made by the Lender to
the Borrowers pursuant to that certain Amended and Restated Revolving Credit
Agreement dated as of February __, 1997, among the Borrowers, the Lender, the
other financial institutions from time to time parties thereto as Lenders, and
Fleet National Bank, as Agent, (as the same may be amended, restated,
supplemented, or otherwise modified from time to time, the "Credit Agreement"),
on June 1, 1999 or such later date as may result from the Borrowers' exercise of
their conversion and extension rights under Section 2.1 of the Credit Agreement,
unless sooner accelerated in accordance with the provisions of the Credit
Agreement. Capitalized terms used herein, and not otherwise defined herein,
shall have the meanings ascribed to such terms in the Credit Agreement.
The Borrowers further promise to pay interest on the unpaid principal
amount of each Loan on the dates determined in accordance with the provisions of
the Credit Agreement and until such principal amount is paid in full, at the
following rates from the date each advance hereunder is made through but
excluding the date of repayment (whether by acceleration or otherwise), which
rates (each rate being sometimes hereinafter referred to as an "Applicable
Rate") shall be selected in accordance with the provisions of the Credit
Agreement:
(a) the Eurodollar Rate (as hereinafter defined); or
(b) the Base Rate (as hereinafter defined).
Interest, fees and other amounts which are calculated
hereunder on the basis of a rate per annum shall be computed on the basis of a
360-day year for the actual number of days elapsed.
The Borrowers shall pay interest on the unpaid principal amount of
the Loans outstanding from time to time, in arrears, (i) on each Interest
Payment Date and (ii) on the Revolving Credit Termination Date.
If Borrowers shall fail to make any payment of principal or interest
on any portion of a Loan or any other amount becoming due, hereunder or under
any of the Loan Documents within ten (10) days of the date such payment is due,
Borrowers shall be subject to a late charge of five percent (5%) of the amount
of such payment. Borrowers shall be entitled to a one-time waiver of the late
charge prior to the Revolving Credit Termination Date. Upon the occurrence and
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the continuance of an Event of Default, Borrowers shall pay interest (to the
extent permitted by law in the case of interest on overdue interest) on such
defaulted amount accruing from and including the date of such Event of Default
up to but excluding the date of actual payment (after as well as before
judgment) at a rate per annum which is the sum of (i) four percent (4%) plus
(ii) the Applicable Rate otherwise payable.
All payments of principal and interest in respect of this Promissory
Note shall be made to the Agent in lawful money of the United States of America
in same day funds for the account of the Lender in accordance with the terms of
the Credit Agreement. Each Loan made by the Lender to the Borrowers pursuant to
the Credit Agreement, and all payments made on account of principal thereof,
shall be recorded by the Lender on its books and records.
If any change in existing law or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to Lender by
any central bank or other fiscal, monetary or other authority (whether or not
having the force of law), shall:
(i) subject Lender to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to
this Note, the Credit Agreement, the Loan Documents, Revolving
Credit Commitment or the Loans (other than Excluded Taxes); or
(ii) materially change the basis of taxation (except
for changes in taxes on income or profits) of payments to Lender of
the principal of or the interest on any Loans or any other amounts
payable to Lender under this Note, the Credit Agreement or the
other Loan Documents; or
(iii) impose or increase or render applicable (other
than to the extent specifically provided for elsewhere in the
Credit Agreement) any special deposit, reserve, assessment,
liquidity, capital adequacy or other similar requirements (whether
or not having the force of law) against assets held by, or deposits
in or for the account of, or loans by, or commitments of Lender; or
(iv) impose on any party any other conditions or
requirements with respect to this Note, the Credit Agreement, the
Loan Documents, the Loans, the Revolving Credit Commitment, or any
class of loans or commitments of which any of the Loans or the
Revolving Credit Commitment forms a part;
and the result of any of the foregoing is:
(A) to increase the cost to Lender of making,
funding, issuing, renewing, extending or maintaining any of
the Loans or its Pro Rata Share thereof; or
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<PAGE> 104
(B) to reduce the amount of principal, interest or
other amount payable to Lender hereunder on account of its Pro
Rata Share of any of the Loans; or
(C) to require Lender to make any payment or to forgo
any interest or other sum payable hereunder, the amount of
which payment or foregone interest or other sum is calculated
by reference to the gross amount of any sum receivable or
deemed received by Lender from the Borrowers hereunder,
then, and in each such case, the Borrowers will, within thirty (30) days after
demand made by Lender or Agent at any time and from time to time and as often as
the occasion therefor may arise, pay to Lender, such additional amounts as
Lender shall determine in good faith will be sufficient to compensate Lender for
such additional cost, reduction, payment or foregone interest or other sum.
If any change in existing law or future law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) or the interpretation thereof by a court or governmental authority with
appropriate jurisdiction affects the amount of capital required or expected to
be maintained by banks or bank holding companies and as a result thereof Lender
determines in good faith that the amount of capital required to be maintained by
it must be increased as a result of the Loans made or deemed to be made pursuant
hereto, then Lender may notify the Borrowers' Agent of such fact, and the
Borrowers' Agent shall pay to Lender from time to time within 30 days after
demand, as an additional fee payable hereunder, such amount as Lender shall
determine in good faith and certify in a notice to the Borrowers' Agent to be an
amount that will adequately compensate Lender in light of these circumstances
for its increased costs of maintaining such capital.
In the event that any Requirements of Law or any change in any
existing Requirements of Law or in the interpretation thereof by any
Governmental Authority charged with the administration thereof, in any case
adopted, issued or effective after the date hereof, shall make it unlawful for
Lender to fund any portion of the Eurodollar Loans or to give effect to its
obligations as contemplated hereby with respect to its making Eurodollar Loans,
Lender shall, upon the happening of such event, notify Borrowers' Agent thereof
in writing stating the reason therefor and the effective date of such event, and
upon the effectiveness of any such event the obligation of Lender to make or
maintain its Eurodollar Loans to any Borrower shall forthwith be suspended for
the duration of such illegality and during such illegality Lender shall, upon
payment of any amounts owing under Section 2.13 of the Credit Agreement with
respect to such conversion, convert its share of the Eurodollar Loans to (upon
effectiveness of any such event and during the continuance of such event) Base
Rate Loans. If and when such illegality with respect thereto ceases to exist,
such suspension shall cease and Lender shall notify Borrowers' Agent that the
Base Rate Loan into which such share of the Eurodollar Loans was converted
pursuant to this Section 2.11 of the Credit Agreement was converted to a
Eurodollar Loan, respectively, on the first day of the next succeeding Interest
Period.
-3-
<PAGE> 105
If the rate of interest payable by any Borrower under this Note, the
Credit Agreement or the Loan Documents shall be or become usurious or otherwise
unlawful under laws applicable thereto, the interest rate shall be reduced to
the maximum lawful rate and any amount paid by such Borrower in excess of the
maximum lawful rate shall be considered a payment in reduction of principal or,
at the sole election of the Agent, shall be returned to such Borrower.
As used herein, the following terms shall have the meanings set forth
below:
"BASE RATE" means a fluctuating interest rate per annum as shall
be in effect from time to time, which rate per annum shall at all times be equal
to the prime rate of interest announced by Agent from time to time, changing
when and as said prime rate changes.
"EURODOLLAR BASE" means the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) shown on the display referred to as the
"LIBO page" (or any display substituted therefor) of the Reuters U.S. Domestic
Money Service transmitted through the Reuters monitor system as being the
respective rates at which U.S. dollar deposits would be offered two (2) Business
Days prior to the beginning of the relevant Interest Period by the principal
London offices of each of the banks named thereon to major banks in the London
interbank Eurodollar market at the relevant local time for delivery on the first
day of such Interest Period for the number of days comprised therein and in the
amount of the then outstanding Eurodollar Loans.
"EURODOLLAR RATE" means, with respect to each Interest Period,
the rate per annum equal to the sum of (A) the Eurodollar Base for such Interest
Period divided by (ii) a percentage equal to one hundred percent (100%) minus
the maximum reserve percentage applicable during such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (the "Board") for determining the maximum reserve requirements
(including, without limitation, any basic, supplemental, marginal or emergency
reserve requirements) for the Agent in respect of liabilities (as defined in
Regulation D of the Board) having a term equal to the Interest Period; plus (B)
one and one-half percent (1-1/2%).
"INTEREST PAYMENT DATE" means the first day of each calendar
month during the term of the Loans.
"INTEREST PERIOD" means, subject to Section 2.5 of the Credit
Agreement, a one (1), three (3) or six (6) month period as selected at the
option of Borrowers' Agent pursuant to a Notice of Borrowing, provided, however,
that:
(i) In the case of immediately successive Interest
Periods applicable to a Borrowing of Eurodollar Loans, each
successive Interest Period shall commence on the day on which the
next preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on
a day which is not a Business Day, such Interest Period shall be
extended to expire on the next succeeding Business Day if the next
succeeding Business Day occurs in the same
-4-
<PAGE> 106
calendar month, and if there will be no succeeding Business Day in
such calendar month, the Interest Period shall expire on the
immediately preceding Business Day;
(iii) Borrowers' Agent may not select an Interest
Period as to any Loan if such Interest Period terminates later than
the Revolving Credit Termination Date;
(iv) Borrowers' Agent may not select an Interest
Period with respect to any portion of principal of a Loan which
extends beyond a date on which any Borrower is required to make a
scheduled payment of such portion of principal; and
(v) There shall be no more than eight (8) Interest
Periods in effect at any one time for any Eurodollar Loans, Base Rate
Loans or any combination of the two.
Notwithstanding the foregoing, Borrowers' Agent shall be entitled to
select an Interest Period of less than one (1) month in the event it wishes to
combine one or more Eurodollar Loans into a single Interest Period.
This Promissory Note is one of the Notes referred to in, is executed
and delivered pursuant to, and is entitled to the benefits of, the Credit
Agreement, to which Credit Agreement reference is hereby made for a statement of
the terms and conditions under which this Promissory Note may be prepaid or the
Obligations accelerated or extended. The terms and conditions of the Credit
Agreement are hereby incorporated in their entirety herein by reference as
though fully set forth herein. Upon the occurrence of certain Events of Default
as more particularly described in the Credit Agreement, the unpaid principal
amount evidenced by this Promissory Note shall become, and upon the occurrence
and during the continuance of certain other Events of Default, such unpaid
principal amount may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CONNECTICUT.
Each Borrower promises to jointly and severally pay all costs and
expenses, including reasonable attorneys' fees, incurred in the collection or
enforcement of this Note upon the occurrence and continuance of a Default or
Event of Default. Each Borrower hereby waives diligence, presentment, protest,
demand and notice of every kind (other than notices expressly required hereunder
or under any other Loan Documents) and, to the full extent permitted by law, the
right to plead any statute of limitations as a defense to any demand hereunder.
EACH BORROWER AND EVERY OTHER PERSON WHO SHALL BECOME LIABLE FOR ALL
OR ANY PART OF THIS NOTE, HEREBY ACKNOWLEDGE THAT THE TRANSACTION OF WHICH THIS
NOTE IS A PART IS A COMMERCIAL TRANSACTION AND EACH HEREBY WAIVE THEIR RIGHTS TO
NOTICE AND HEARING UNDER CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES OR BY
OTHER
-5-
<PAGE> 107
APPLICABLE LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH HOLDER MAY
DESIRE TO USE.
BORROWER AND EACH OTHER PERSON WHO SHALL BECOME LIABLE FOR ALL OR ANY
PART OF THIS NOTE, HEREBY WAIVES TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION,
OR PROCEEDING OR ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO
THE TRANSACTION OF WHICH THIS NOTE IS A PART AND/OR IN THE ENFORCEMENT BY HOLDER
OF ANY OF ITS RIGHTS AND REMEDIES HEREUNDER OR UNDER APPLICABLE LAW. EACH
BORROWER AND SUCH OTHER PARTY ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY,
VOLUNTARILY AND ONLY AFTER CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER BY
ITS ATTORNEY.
IN WITNESS WHEREOF, the Borrowers have caused his Promissory Note to
be executed and delivered by its duly authorized officer as of the day and year
first above written.
LEXINGTON CORPORATE PROPERTIES, INC.
By:
--------------------------------------
T. Wilson Eglin
Its:
LEPERCQ CORPORATE INCOME FUND L.P.
BY: Lex GP-1, Inc., its general partner
By:
--------------------------------------
T. Wilson Eglin
President
LEPERCQ CORPORATE INCOME FUND II L.P.
BY: Lex GP-1, Inc., its general partner
By:
--------------------------------------
T. Wilson Eglin
President
-6-
<PAGE> 108
UNION HILLS ASSOCIATES
BY: Lepercq Corporate Income Fund, L.P., its
general partner
BY: Lex GP-1, Inc., its general
partner
By:
------------------------------
T. Wilson Eglin
President
NORTH TAMPA ASSOCIATES
BY: Lepercq Corporate Income Fund II, L.P.,
its general partner
BY: Lex GP-1, Inc., its general partner
By:
------------------------------
T. Wilson Eglin
President
LEX GP-1, INC.
By:
------------------------------
T. Wilson Eglin
President
-7-
<PAGE> 109
EXHIBIT C
FORM OF NOTICE OF BORROWING
__________________, 199__
Fleet National Bank
111 Westminster Street
Suite 800
Providence, Rhode Island 02903
Attention: Commercial Real Estate Group
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Revolving Credit
Agreement dated as of February ___, 1997 (such agreement, as it may be or may
have been amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; capitalized terms used herein without definition
shall have the respective meanings assigned to those terms in the Credit
Agreement) among Lexington Corporate Properties, Inc.; Lepercq Corporate Income
Fund, L.P.; Lepercq Corporate Income Fund II, L.P.; Union Hills Associates;
North Tampa Associates; LEX GP-1, Inc. and LEX GP-2, Inc., jointly and
severally, as Borrowers, the institutions from time to time party thereto as
Lenders and Fleet National Bank, as Agent.
The Borrowers hereby give you notice, irrevocably, pursuant to Section
2.4(a) of the Credit Agreement that the Borrowers hereby request a Borrowing
under the Credit Agreement, and in that connection, set forth below is the
information required in respect thereof under the Credit Agreement:
(i) The proposed Borrowing Date is [date].
(ii) The proposed Borrowing is of $________ in Eurodollar
Loans] [and] [$________ in Base Rate Loans].
[(iii) The initial Interest Period applicable to the
Eurodollar Loans, if applicable, is [one, two, three, four, five, six,
nine or twelve months].
Borrowers' Agent hereby certifies to the Agent and each of the Lenders
on behalf of each of the Borrowers that the conditions precedent contained in
Section [5.1 (in the case of the first Borrowing)] [5.2 (in the case of each
subsequent Borrowing)] are satisfied on the date hereof and will be satisfied on
the proposed Borrowing Date except as follows (if any):
Please pay the proceeds of such Loans into the account whose details
are given below:
______________________
______________________
______________________
<PAGE> 110
Executed as of this ___ day of ________, 199 .
LEXINGTON CORPORATE PROPERTIES, INC.,
as Borrowers' Agent
By:
_______________________________________
its:
_____________________________________
-2-
<PAGE> 111
EXHIBIT D
FORM OF CERTIFICATE OF ELIGIBLE PROPERTIES AND MAXIMUM AVAILABILITY
Fleet National Bank
111 Westminster Street, Suite 800
Providence, Rhode Island 02903
Attention: Commercial Real Estate Group
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Revolving Credit
Agreement dated as of February ___, 1997 (such agreement, as it may be or may
have been amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; capitalized terms used herein without definition
shall have the respective meanings assigned to those terms in the Credit
Agreement) among Lexington Corporate Properties, Inc.; Lepercq Corporate Income
Fund, L.P.; Lepercq Corporate Income Fund II, L.P.; Union Hills Associates;
North Tampa Associates; LEX GP-1, Inc. and LEX GP-2, Inc., jointly and
severally, as Borrowers, the institutions from time to time party thereto as
Lenders and Fleet National Bank, as Agent ("Agent").
Pursuant to Section 2.3 of the Credit Agreement, the undersigned hereby
certifies and warrants to Agent and each of the Lenders on behalf of each
Borrower that as of ______________, 199_:
I. Eligible Properties:
Eligible Properties are as follows:
<TABLE>
<CAPTION>
Total Eligible Property
NOI for the four most recent
Most Recent fiscal quarters
Address Appraised Value ending [date]
------- --------------- -------------
<S> <C> <C>
1.
2.
3.
4.
5.
6.
Total $ _________ $ _________
</TABLE>
II. Maximum Availability:
<TABLE>
<S> <C>
(a) Revolving Credit Commitments in effect $_________
on the date hereof:
</TABLE>
<PAGE> 112
<TABLE>
<S> <C>
(b) 60% of the Appraised Value of Eligible Properties: $_________
(c) MADSC Amount* $_________
* See Calculation on Schedule I to Exhibit D
(d) NPV of Eligible Property NOI (from Schedule II) $_________
(e) Lesser of (a), (b), (c) or (d): $_________
</TABLE>
In preparing this Certificate and attached Schedules, an authorized
officer of the undersigned entity has conducted, or caused to be conducted under
his or her supervision, such investigations as in his or her opinion are
necessary and satisfactory in scope and substance to determine the facts set
forth herein and upon which Agent, each of the Lenders and the undersigned
entity are justified in relying; provided, however, Agent acknowledges on behalf
of itself and each of the Lenders that in preparing this Certificate and any
attached Schedules hereto, the undersigned has relied on any information
provided by Recognized Appraisers and Borrower's independent certified public
accountants without further inquiry or investigation; provided further, however,
that the undersigned has no knowledge of any facts or circumstances which would
give the undersigned reason to doubt the accuracy of such information in any
material respect.
WITNESS the due execution of this Certificate by the undersigned's duly
authorized representative on __________, 199_.
LEXINGTON CORPORATE PROPERTIES, INC.,
as Borrowers' Agent
By:__________________________________
Its:______________________________
- 2 -
<PAGE> 113
SCHEDULE I TO CERTIFICATE OF
ELIGIBLE PROPERTIES AND MAXIMUM AVAILABILITY
<TABLE>
<S> <C> <C>
1. Total Eligible Property NOI (from Schedule II attached) $________
2. Maximum Assumed Debt Service (1 above [divided by] 1.6) $________
3. Maximum Assumed Monthly Debt Service (2 above [divided by] 12) $________
4. Monthly Debt Service Constant
(a) 10-year Treasury yield (date) ________%
(b) Assumed interest rate ((a) plus 2.25%) ________%
(c) Monthly Debt Service Constant ________%
(based on (b) above divided by twelve
and a 240 month amortization)
5. MADSC Amount
(a) Maximum Assumed Monthly Debt Service - Monthly
Debt Service Constant $________
MADSC AMOUNT $________
</TABLE>
- 3 -
<PAGE> 114
SCHEDULE II TO CERTIFICATE OF ELIGIBLE PROPERTY
AND MAXIMUM AVAILABILITY
<TABLE>
<CAPTION>
Fiscal Fiscal Fiscal Fiscal
Quarter Quarter Quarter Quarter
ending ending ending ending
Eligible Property (Date) (Date) (Date) (Date) Total
----------------- ------ ------ ------ ------ -----
<S> <C> <C> <C> <C> <C>
Base Rent $ $ $ $ $
Other Revenue (describe) $ $ $ $ $
---------- ---------- ---------- ---------- ----------
Total Revenue $ $ $ $ $
Operating Expenses (describe) $ $ $ $ $
Management Fee (greater of
3% of Total Revenue or actual
expense) $ $ $ $ $
---------- ---------- ---------- ---------- ----------
Total Expenses $ $ $ $ $
Eligible Property NOI (Total
Revenue minus Total Expense) $ $ $ $ $
========== ========== ========== ========== ==========
</TABLE>
- 4 -
<PAGE> 115
EXHIBIT E
FORM OF CERTIFICATE OF CURRENT AVAILABILITY
Fleet National Bank
111 Westminster Street, Suite 800
Providence, Rhode Island 02903
Attention: Commercial Real Estate Group
Gentlemen:
Reference is made to that certain Amended and Restated Revolving Credit
Agreement dated as of February ___, 1997 (such agreement, as it may be or may
have been amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; capitalized terms used herein without definition
shall have the respective meanings assigned to those terms in the Credit
Agreement) among Lexington Corporate Properties, Inc.; Lepercq Corporate Income
Fund, L.P.; Lepercq Corporate Income Fund II, L.P.; Union Hills Associates;
North Tampa Associates; LEX GP-1, Inc. and LEX GP-2, Inc., jointly and
severally, as Borrowers, the institutions from time to time party thereto as
Lenders and Fleet National Bank, as Agent.
Pursuant to Section 2.4 of the Credit Agreement, the undersigned hereby
certifies and warrants to Agent and each of the Lenders on behalf of each
Borrower that as of ____________, 199_ :
<TABLE>
<S> <C>
A. Maximum Availability (attach Certificate of
Maximum Availability) $_____________
B. Aggregate amount of outstanding Loans $_____________
C. Current Availability (A minus B): $_____________
D. Total Advance Requested $_____________
E. Ending Availability (D minus C) $_____________
</TABLE>
In preparing this Certificate and any attached Schedules, an authorized
officer of the undersigned entity has conducted, or caused to be conducted under
his or her supervision, such investigations as in his or her opinion are
necessary and satisfactory in scope and substance to determine the facts set
forth herein and upon which Agent, each of the Lenders and the undersigned
entity are justified in relying; provided, however, Agent acknowledges on behalf
of itself and each of the Lenders that in preparing this Certificate and any
attached Schedules hereto, the undersigned has relied on any information
provided by Recognized Appraisers and Borrower's independent certified public
accountants without further inquiry or investigation; provided further, however,
that the undersigned has no knowledge of any facts or circumstances which would
give the undersigned reason to doubt the accuracy of such information in any
material respect.
<PAGE> 116
WITNESS the due execution of this Certificate by the undersigned's duly
authorized representative on __________, 199_.
LEXINGTON CORPORATE PROPERTIES, INC.,
as Borrowers' Agent
By:______________________________________
its:__________________________________
- 2 -
<PAGE> 117
EXHIBIT F
FORM OF NOTICE OF CONTINUATION/CONVERSION
__________________, 199__
Fleet National Bank
111 Westminster Street
Suite 800
Providence, Rhode Island 02903
Attention: Commercial Real Estate Group
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Revolving Credit
Agreement dated as of February ___, 1997 (such agreement, as it may be or may
have been amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; capitalized terms used herein without definition
shall have the respective meanings assigned to those terms in the Credit
Agreement) among Lexington Corporate Properties, Inc.; Lepercq Corporate Income
Fund, L.P.; Lepercq Corporate Income Fund II, L.P.; Union Hills Associates;
North Tampa Associates; LEX GP-1, Inc. and LEX GP-2, Inc., jointly and
severally, the institutions from time to time party thereto as Lenders and Fleet
National Bank, as Agent. The Borrowers hereby give you notice pursuant to
Section 2.5(c) of the Credit Agreement for the Loans specified below that they
elect to:
1. [Continue as Eurodollar Loans $ ________ in aggregate principal
amount of the outstanding Eurodollar Loans, the current Interest Period of which
ends on ___________, 19__].
2. [Convert to [Base Rate Loans] [Eurodollar Loans] $ ___________ in
aggregate principal amount of the outstanding [Eurodollar Loans, the current
Interest Period of which ends on _____] [Base Rate Loans]].
3. The date for such [continuation] [and] [conversion] shall be ______.
4. [The Interest Period for such continued or converted (as applicable)
Eurodollar Loans is requested to be [a ________ month period].
Borrowers' Agent hereby certifies to the Agent and each of the Lenders on
behalf of each Borrower that on the date hereof there are no prohibitions under
the Credit Agreement to the requested conversion/continuation, and no such
prohibitions will exist on the date of the requested conversion/continuation.
Executed as of this __ day of __, 199_.
LEXINGTON CORPORATE PROPERTIES, INC.,
as Borrowers' Agent
By:______________________________________
its:__________________________________
<PAGE> 118
EXHIBIT G
ENVIRONMENTAL REPORTS
1. Phase I Environmental Assessment Report, dated November 4, 1994,
prepared by Dames & Moore with respect to the property located at 19019
North 59th Avenue, Glendale, Arizona; as supplemented by letter, dated
October 30, 1995, by Dames & Moore to Ms. Janet Brand.
2. Phase I Environmental Assessment Report, dated November 3, 1994,
prepared by Dames & Moore with respect to the property located at 200
Southington Executive Park, Southington, Connecticut.
3. Phase I Environmental Assessment Report, dated October 15, 1995,
prepared by Ground Engineering and Testing Services, Inc. with respect
to the property located on Progress Drive in Tuscaloosa County,
Alabama, as supplemented by an addendum thereto dated November 3, 1995
by Ground Engineering and Testing Services, Inc. to Mr. Richard Powell.
4. Preliminary Environmental Site Assessment Report, dated April 17, 1996,
prepared by Dames & Moore with respect to the property located at 1555
Pelham Road, South, Jacksonville, Alabama.
5. Phase I Environmental Assessment Report, dated September 15, 1995,
prepared by Clayton Environmental Consultants. Inc. with respect to the
property located at 46600 Port Street, Plymouth, Michigan.
6. Phase I Environmental Assessment Report, dated August, 1995, prepared
by G&T Associates, Inc., with respect to the property located at
Stearns Road, Oberlin, Ohio.
7. Phase I Environmental Assessment Report Update, dated October 25, 1995
prepared by Dames & Moore with respect to the property located at 7055
Highway 85, Riverdale, Georgia, as supplemented by a letter from GZA
Environmental Consultants dated March 11, 1996 to Mr. Mark E. Dalton.
<PAGE> 119
EXHIBIT H
PERMITTED EXCEPTIONS
<PAGE> 120
EXHIBIT I
RENT ROLL
Property Tenant
1. 19019 North 59th Avenue Honeywell. Inc.
Glendale, Arizona
2. 200 Southington Executive Park Hartford Fire
Southington, Connecticut Insurance Co.
3. 1055 Highway 85 South Wal-Mart Stores, Inc.
Riverdale, Georgia
4. Alabama 21 South Wal-Mart Stores, Inc.
Jacksonville, Alabama
5. 450 Stern Street Johnson Controls, Inc.
Oberlin, Ohio
6. 46600 Port Street Johnson Controls, Inc.
Plymouth, Michigan
7. 15911 Progress Drive Johnson Controls, Inc.
Tuscaloosa, Alabama
<PAGE> 121
EXHIBIT J
SERVICES AGREEMENTS
None.
<PAGE> 122
SCHEDULE I TO COVENANT COMPLIANCE CERTIFICATE DATED [ ]
Covenants:
<TABLE>
<S> <C> <C>
1. Minimum Estimated Net Worth
of Borrowers (Section 7.1(a))
(a) Estimated Market Value (from Schedule II) $___________
(b) Unrestricted cash and cash equivalents $___________
(c) Total Liabilities $___________
Minimum Estimated Net Worth (sum of (a) plus (b)
minus (c)): $__________
Must be greater than or equal to the sum of:
(a) $100,000,000 plus $100,000,000
(b) 75% of the Net Securities Proceeds received by
Lexington after November 14, 1995 $___________
Total of (a) plus (b) $__________
2. Debt Service Coverage for the previous fiscal quarter (Section 7.1(b))
(a) EBIDA (from Schedule II) $___________
(b) Consolidated debt service
(i) Interest expense $__________
(ii) Principal payments $__________
Consolidated debt service (sum of (i) plus (ii)) $___________
Debt Service Coverage ((a) divided by (b)) __________
Must be greater than or equal to 1.3x.
3. Maximum Total Debt to Estimated Market Value (from Schedule II)
(Section 7.1(c))
(a) Total debt $___________
(b) Estimated Market Value (from Schedule II) $___________
Maximum Total Debt to Estimated Market Value (from Schedule II)
((a) divided by (b) converted to a percentage) __________%
</TABLE>
Must not exceed 60%
- 3 -
<PAGE> 123
SCHEDULE I (Continued)
<TABLE>
<S> <C> <C>
4. Liquidity (Section 7.1(d))
Section 7.1(a)(i)
(a) Cash and Cash Equivalents $__________
(b) Unfunded Availability under Line of Credit $__________
Liquidity (sum of (a) and (b)) $___________
Must not be less than $5,000,000
Section 7.1(d)(ii)
(a) Cash and Cash Equivalents $__________
(b) Outstanding Amount $__________
(c) Projected Maximum Availability $__________
Sum of (a) may not be less than (b) minus (c)
5. Maximum Recourse
Debt to Estimated Market
Value (from Schedule II) (Section 7.1(e))
(a) Total Recourse Debt $__________
(b) Estimated Market Value (from Schedule II) $__________
Maximum Recourse Debt to
Estimated Market Value (from Schedule II)
((a) divided by (b) converted to a percentage) ___________%
Must not exceed 25%
6. Maximum Permitted Investments (Section 7.1(f))
(a) Notes $__________
(b) Mortgages $__________
(c) Unimproved Real Estate $__________
(d) Estimated Market Value (from Schedule II) $__________
Maximum Permitted Notes and Mortgages ___________%
(sum of (a) and (b) divided by (d)
and converted to a percentage)
Maximum Unimproved Real Estate
((c) divided by (d) and converted to a percentage) ___________%
</TABLE>
Must not exceed 5% of Estimated
Market Value in each case
- 4 -
<PAGE> 124
SCHEDULE I (Continued)
<TABLE>
<S> <C>
7. Interest Rate Protection (Section 7.1(g))
(a) Indebtedness which bears interest rate that is not
fixed through the maturity date of such Indebtedness
(list each individual loan)
(b) Amount of (a) subject to a swap, rate
cap or other interest rate management
program that effectively converts the
interest rate on such amount to a fixed rate.
(list expiration date and amount)
Variable Interest Indebtedness ((a) minus (b) divided by ____________%
Estimated Market Value and converted to a percentage)
Must be less than or equal to 12.5% Estimated Market Value
8. Limited on Construction Activity (Section 7.1(h))
(a) Total value of construction in process (defined
as total estimated completed cost of new construction,
expansions and redevelopment in process, excluding
tenant improvements and property renovation and
refurbishment) $____________
(b) 10% of Estimated Market Value $____________
(a) must be less than (b)
9. Minimum Fixed Charge Coverage (Section 7.1(i))
(a) EBIDA $____________
(b) Non-revenue generating Capital Expenditures $____________
(c) Annual Debt Service $____________
(d) Dividends $____________
The ratio of (a) minus (b) to (c) plus (d) _____:______
</TABLE>
May not be less than .95:1.0
Executed as of the ______ day of __________, 199_.
LEXINGTON CORPORATE PROPERTIES, INC.
As Borrowers' Agent
By:______________________________________
its:__________________________________
- 5 -
<PAGE> 125
SCHEDULE II WORKSHEET TO COVENANT COMPLIANCE CERTIFICATE DATED [ ]
Calculations:
<TABLE>
<CAPTION>
Previous
Fiscal 4 Fiscal
Quarter Quarters
------- --------
<S> <C> <C>
1. EBIDA
(a) Consolidated net income from operations $________ $________
(b) Adjustment for depreciation and amortization $________ $________
(c) Adjustment for interest expense $________ $________
(d) Adjustment for gains (losses) from asset sales and $________ $________
extraordinary items
EBIDA (sum of (a) through (b)) $________ $________
2. Estimated Market Value
(a) EBIDA for the previous four (4) fiscal quarters $________
(b) 10-year Treasury bond rate as of the date of this Compliance
Certificate plus 2.0% ________%
(c) The greater of (b) above or 10% ________%
Estimated Market Value ((a) divided by (c)) $________
</TABLE>
- 6 -
<PAGE> 126
EXHIBIT M
FORM OF TENANT ESTOPPEL CERTIFICATE
To: Fleet National Bank ("Lender")
111 Westminster Street, Suite 800
Providence, RI 02903
Re: __________________________
Ladies and Gentlemen:
This certificate is being furnished to Lender in connection with the
making and maintaining of a loan ("Loan") to Lexington Corporate Properties,
Inc.; Lepercq Corporate Income Fund, L.P.; Lepercq Corporate Income Fund II,
L.P.; Union Hills Associates; North Tampa Associates; LEX GP-1, Inc. and LEX
GP-2 Inc., jointly and severally, as "Borrowers" under an Amended and Restated
Revolving Credit Agreement dated as of February __,1997, ("Credit Agreement") by
and between Borrowers, the institutions from time to time party thereto as
Lenders and Fleet National Bank as Agent. The Loan is secured by, among other
things, a Mortgage and Security Agreement ("Mortgage") and a related Collateral
Assignment of Rents and Leases ("Assignment") covering premises located at
_______________ ("Premises").
The undersigned ("Tenant") is the holder of and tenant under that
certain lease ("Lease") dated ______________ made with ___________ as Landlord
and assigned to Borrower under an Assignment dated ______________ with Borrower
becoming the Landlord with respect to the Premises.
The Tenant hereby represents and certifies to Agent and each of the
Lenders as follows:
1. The Lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way, and, to the best of Tenant's
knowledge, neither party thereto is in default, nor does any state of facts
exist which with the passage of time or the giving of notice, or both, would
constitute a default thereunder;
2. All conditions under the Lease to be performed by Landlord as of the
date hereof (including, without limitation, all work to be performed by Landlord
in the Premises) have been satisfied, and all contributions, if any, required to
be paid by Landlord under the Lease to date for improvements to the Premises
have been paid;
3. Effective ___________, Tenant is in possession of the Premises and is
fully obligated to pay and is paying the rent and other charges due under the
Lease and is fully obligated to perform and is performing all of the other
obligations of Tenant under the Lease. The termination date of the current term
of the Lease is ______________.
EXHIBIT M (Continued)
4. The Lease does not provide for any payments (including, without
limitation, rent credits) by the Landlord to the undersigned which are presently
due and payable or which are due and payable in the future except for a maximum
allowance of $____________ for repairs and renovations of which $_____________
has been paid to Tenant to date.
5. On this date, to the best of Tenant's knowledge, there are no existing
defenses or off-sets which Tenant has against the enforcement of the Lease by
Landlord;
<PAGE> 127
6. The base rent being paid under the lease is $__________ per month
($___________ per annum). No rent has been paid in advance and, except as
hereafter stated, no security has been deposited with the Landlord [if none are
so specified, there are no advance rents or security deposits]
___________________________________________________________________________
___________________________________________________________________________ ;
7. Tenant will not make any prepayment of rent under the Lease more
than one (1) month in advance of the due date thereunder;
8. The Tenant shall promptly forward to Lender as holder of the
Mortgage copies of all notices given by the Tenant to the Landlord pursuant to
the Lease;
9. So long as the Mortgage and Assignment remain undischarged of
record, the Tenant shall not amend, modify or cancel the Lease, or consent to an
amendment, modification or cancellation of the Lease, or agree to subordinate
the Lease to any other mortgage, without Lender's prior written consent in each
instance;
10. The Lease described in the second paragraph of this Certificate is
the complete agreement between Landlord and Tenant relating to the Premises and
other than described in such second paragraph, there are no amendments, addenda,
modifications or supplements thereto and there are no side letters or other
arrangements, whether or not constituting amendments, addenda, modifications or
supplements thereto relating to the Premises.
11. Except as provided in the Lease, the Tenant has no options to
extend the Lease, to lease additional space at the Premises, or to purchase the
Premises, and the Tenant has no right of refusal with respect to leasing
additional space or with respect to purchasing the Premises
12. The interest of the Tenant in the Lease has not been assigned or
encumbered, and no part of the Premises has been sublet;
13. There are no actions, whether voluntary or otherwise, pending
against the Tenant and/or any guarantor of the Tenant's obligations under the
Lease pursuant to the bankruptcy or insolvency laws of the United States or any
state thereof; and
14. Tenant acknowledges receipt of notice of the Assignment and agrees
that upon notice from Lender of a Default under the Loan, Tenant will make all
subsequent rental payments directly to Lender, it being understood and agreed
that the payment of such rent to Lender under the Assignment shall not be deemed
to place control of the Premises on Lender nor to render Lender liable for the
obligations of the Landlord under the Lease. Notwithstanding the Assignment and
any payment of rent which may be made to Lender, Lender shall have no duty,
liability or obligation under the Lease either by virtue of the Assignment, the
exercise thereof, or by any subsequent action taken by Lender, until such time,
if ever, as Lender shall notify the Tenant in writing of Lender's election to
assume the Landlord's obligation under the Lease, or upon acquisition of the
Property by the Lender following foreclosure in which event the purchaser at
foreclosure shall be bound by the Lease, but only so long as such purchaser is
the owner of the Premises.
15. This Certificate shall inure to the benefit of Lender, its
successors and assigns, and shall be binding upon Tenant and Tenant's successors
and permitted assigns.
16. As contemplated by the Lease, Tenant agrees that no notice from
Tenant to Landlord under the Lease shall be effective unless and until a copy of
the same is given to Lender (at
- 2 -
<PAGE> 128
Lender's address specified herein or such other address as Lender may from time
to time specify to Tenant in writing) and Tenant further agrees that the curing
of any Landlord default by Lender, or its successors, within a reasonable time
after such notice (including a reasonable period of time to obtain possession of
the Premises if Lender elects to do so) shall be treated as performance by the
Landlord.
DATED: ___________, 199_ and executed as an instrument under seal.
ATTEST: TENANT:
______________________________
_____________________________ By:___________________________
Name: Name:
Title: Title:
STATE OF ________
______________, ss.______________, 19__
Then personally appeared before me _________, the _______________
of__________, and acknowledged the foregoing to be such person's free act and
deed, as the said corporation and the free act and deed of said corporation and
made oath that the facts therein stated are true, accurate and complete.
_____________________
Notary Public
My Commission Expires:
* * *
The undersigned, the Borrowers' Agent, hereby ratifies and confirms all
of the statements set forth above.
Executed and delivered as a sealed instrument as of the ___ day
of______, 199_.
LEXINGTON CORPORATE PROPERTIES, INC.,
as Borrowers' Agent
By:__________________________________
its:______________________________
- 3 -
<PAGE> 129
EXHIBIT N
LIST OF PROPERTIES AND THEIR OWNERS
<TABLE>
<CAPTION>
Property Owner
-------- -----
<S> <C>
1. 19019 North 59th Avenue, Lepercq Corporate Income Fund L.P.
Glendale, Arizona
2. 200 Southington Executive Park Union Hills Associates
Southington, Connecticut
3. 7055 Highway 85, Lexington Corporate Properties, Inc.
Riverdale, Georgia
4. Wal-Mart Store #300, Pelham Road South Lexington Corporate Properties, Inc.
(Alabama Highway 21 South)
Jacksonville, Alabama
5. 450 Stern Street Lexington Corporate Properties, Inc.
Oberlin, Ohio
6. 46600 Port Street Lexington Corporate Properties, Inc.
Plymouth, Michigan
7. 15911 Progress Drive Lexington Corporate Properties, Inc.
Tuscaloosa, Alabama
</TABLE>
<PAGE> 130
EXHIBIT O
FORM OF CERTIFICATE OF RECOURSE INDEBTEDNESS
Fleet National Bank
111 Westminster Street, Suite 800
Providence, Rhode Island 02903
Attention: Commercial Real Estate Group
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Revolving Credit
Agreement dated as of February ___, 1997 (such agreement, as it may be or may
have been amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; capitalized terms used herein without definition
shall have the respective meanings assigned to those terms in the Credit
Agreement) among Lexington Corporate Properties, Inc.; Lepercq Corporate Income
Fund, L.P.; Lepercq Corporate Income Fund II, L.P.; Union Hills Associates;
North Tampa Associates; LEX GP-1, Inc. and LEX GP-2, Inc., jointly and
severally, as Borrowers, the institutions from time to time party thereto as
Lenders and Fleet National Bank, as Agent.
Pursuant to Section 6.2(a)(iii) of the Credit Agreement, the
undersigned hereby certifies and warrants to Agent and each of the Lenders on
behalf of each Borrower that as of ___________, 199__ the amount of recourse
debt incurred by the Borrowers is as follows:
I. Recourse Debt:
<TABLE>
<CAPTION>
Institution as of [Date] Borrower Amount of Recourse Debt
- ----------- ------------ -------- -----------------------
<S> <C> <C> <C>
1. $
2. $
3. $
4. $
5. $
---------------------
TOTAL $
---------------------
</TABLE>
In preparing this Certificate and any attached Schedules, an authorized
officer of the undersigned entity has conducted, or caused to be conducted under
his or her supervision, such investigations as in his or her opinion are
necessary and satisfactory in scope and substance to determine the facts set
forth herein and upon which Agent, each of the Lenders and the undersigned
entity are justified in relying; provided, however, Agent acknowledges on behalf
of itself and each of the Lenders that in preparing this Certificate and any
attached Schedules hereto, the undersigned has relied on any information
provided by Recognized Appraisers and
<PAGE> 131
Borrower's independent certified public accountants without further inquiry or
investigation; provided further, however, that the undersigned has no knowledge
of any facts or circumstances which would give the undersigned reason to doubt
the accuracy of such information in any material respect.
WITNESS the due execution of this Certificate by the undersigned's duly
authorized representative on __________, 199_.
LEXINGTON CORPORATE PROPERTIES, INC.,
as Borrowers' Agent
By:__________________________________
its:______________________________
- 2 -
<PAGE> 132
EXHIBIT P
LIST OF APPRAISED VALUES
Property Appraised Value
1. 19019 North 59th Avenue $21,000,000
Glendale, Arizona
2. 200 Southington Executive Park $16,000,000
Southington, Connecticut
3. 1055 Highway 85 South $ 2,720,000
Riverdale, Georgia
4. Alabama 21 South $ 2,000,000
Jacksonville, Alabama
5. 450 Stern Street $ 5,100,000
Oberlin, Ohio
6. 46600 Port Street $ 7,350,000
Plymouth, Michigan
7. 15911 Progress Drive $ 3,600,000
Tuscaloosa, Alabama
<PAGE> 133
EXHIBIT Q
ERISA MATTERS
Lexington maintains a 401(k) retirement plan for its employees which is
administered by the Principal Financial Group, Des Moines, Iowa.
<PAGE> 134
EXHIBIT R
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE dated ______, 199_, between
____________ (the "Assignor") and ____________ (the "Assignee").
PRELIMINARY STATEMENT
A. Reference is made to the Amended and Restated Revolving
Credit Agreement dated as of February __, 1997 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Credit
Agreement") among Lexington Corporate Properties, Inc.; Lepercq Corporate Income
Fund, L.P.; Lepercq Corporate Income Fund II, L.P.; Union Hills Associates;
North Tampa Associates; LEXGP-1, Inc.; and LEXGP-2, Inc., the institutions from
time to time party thereto as Lenders and Fleet National Bank, as Agent.
Capitalized terms used herein and not otherwise defined herein are used as
defined in the Credit Agreement.
B. The Assignor is a Lender under the Credit Agreement and
desires to sell and assign to the Assignee, and the Assignee desires to purchase
and assume from the Assignor, on terms and conditions set forth below, a ___
percent ( ___%) interest in the Assignor's Revolving Credit Commitment and
related outstanding Loans (the "Assigned Percentage") from the Assignor,
together with the Assignor's rights and obligations under the Credit Agreement
with respect to the Assigned Percentage.
NOW, THEREFORE, the Assignor and the Assignee hereby agree as
follows:
1. In consideration of the Assignee's payment of $__________,
the Assignor hereby sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, the Assigned Percentage, together with
the Assignor's rights and obligations under the Credit Agreement and all of the
other Loan Documents with respect to the Assigned Percentage as of the date
hereof (after giving effect to any other assignments thereof made prior to the
date hereof, whether or not such assignments have become effective, but without
giving effect to any other assignments thereof also made on the date hereof),
including, without limitation, the obligation to make Loans and the obligation
to participate in Letters of Credit.
2. The Assignor (i) represents and warrants that as of the
date hereof its Revolving Credit Commitment is $_______ and its Pro Rata Share
is ______ percent (____%) (in each case, after giving effect to any other
assignments thereof made prior to the date hereof, whether or not such
assignments have become effective, but without giving effect to any other
assignments thereof made as of the date hereof); (ii) represents and warrants
that it is the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse claim; (iii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
<PAGE> 135
connection with the Credit Agreement or any of the other Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant thereto; and (iv) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any obligations under the Credit Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it shall have no recourse against the Assignor with respect to any matter
relating to the Credit Agreement, any of the other Loan Documents, or this
Assignment and Acceptance (except with respect to the representations of
warranties made by the Assignor in clauses (i) and (ii) of paragraph 2 above);
(iv) agrees that it will, independently and without reliance upon the Agent, the
Assignor or any other Lender 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 action under the Credit Agreement; (v) confirms that it is
an Eligible Assignee; (vi) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Credit Agreement as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (vii) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender; (viii) confirms
that, to the best of its knowledge, as of the date hereof, it is not subject to
any law, regulation or guideline from any central bank or other Governmental
Authority or quasi-governmental authority exercising jurisdiction, power or
control over it, which would subject the Borrower to the payment of additional
compensation under Section [2.10] or under Section [2.12] of the Credit
Agreement; [and] (ix) specifies as its Domestic Lending Office (and address for
notices) and Eurodollar Lending Office(s) the offices set forth beneath its name
on the signature pages hereof [and (x) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement and the Notes or such other documents as are necessary to indicate
that all such payments are subject to such rates at a rate reduced by an
applicable tax treaty].(1)
4. Following the execution of this Assignment and Acceptance
by the Assignor and the Assignee, it will be delivered to the Agent for
acceptance and recording by the Agent. The effective date of this Assignment and
Acceptance shall be the date of acceptance thereof by the Agent specified on the
signature page hereof (the "Effective Date").
5. As of the Effective Date, (i) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and
- ---------------
(1) If the Assignee is organized under the laws of a jurisdiction outside the
United States.
- 2 -
<PAGE> 136
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement with respect to the
Assigned Percentage.
6. From and after the Effective Date, the Agent shall make all
payments under the Credit Agreement and the Notes in respect of the Assigned
Percentage (including, without limitation, all payments of principal, interest
and fees with respect thereto) to the Assignee. The Assignor and Assignee shall
make all appropriate adjustments in payments under the Credit Agreement and the
Notes for periods prior to the Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CONNECTICUT.
8. This Assignment and Acceptance may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
- 3 -
<PAGE> 137
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
[NAME OF ASSIGNOR]
By ________________________________________
Title:
Adjusted Pro Rata Share: ________%
Adjusted Revolving Credit
Commitment: $________
[NAME OF ASSIGNEE]
By ________________________________________
Title:
Domestic Lending Office (and address
for notices):
[Address]
Eurodollars Lending Office(s):
[Address]
Pro Rata Share: _______%
Revolving Credit Commitment: $_______
Accepted this ____ day of ____________, 19__
FLEET NATIONAL BANK, as Agent
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
- 4 -
<PAGE> 138
LEXINGTON CORPORATE PROPERTIES, INC.
<TABLE>
<S> <C> <C>
ORGANIZED: Maryland (CT) April 19, 1994
Delaware (CT) October 14, 1992 - MERGED into Maryland corp.6/27/94
QUALIFIED: Alabama (CT) May 22, 1996
Georgia (CT) November 28, 1995
New York August 16, 1993
North Carolina (CT) December 20, 1996
Michigan (CT) December 26, 1996
Ohio (CT) December 23, 1996
STOCK: AUTHORIZED: 90,000,000 Shares, $0.0001 Par Value as follows:
40,000,000 Common
40,000,000 Excess
10,000,000 Preferred
ISSUED: 20,000,000 Common
OUTSTANDING: Check with Tom Watt at Chemical Mellon 946-7189.
DIRECTORS: E. Robert Roskind T. Wilson Eglin
Richard J. Rouse Carl D. Glickman
Seth M. Zachary Kevin W. Lynch
Harry E. Petersen, Jr. John D. McGurk
OFFICERS: Chairman & Co-CEO: E. Robert Roskind
Vice Chairmn & Co-CEO Richard J. Rouse
President & COO T. Wilson Eglin
Vice President & CAO: Paul R. Wood
Senior Vice Presidents: Peter J. Kinnunen
Stephen C. Hagen
Vice President: Janet M. Brand
Secretary: Paul R. Wood
Treasurer & CFO: Antonia G. Trigiani
TAX ID#: 13-3717318
</TABLE>
DESCRIPTION: A REIT formed to convert LCIF and LCIF II Units to Stock
in this Corp.
PROPERTY: Jacksonville, AL: Wal-Mart Store (purchased 5/31/96)
Tuscaloosa, AL: Johnson Controls (pending; DID NOT
CLOSE as of 12/31/96)
Riverdale, GA: Wal-Mart Store (purchased 12/1/95)
Plymouth, MI: Johnson Controls (purchased 12/23/96)
Franklin, NC: SKF USA (purchased 12/23/96)
Oberlin, OH: Johnson Controls (purchased 12/23/96)
CONTINUED ON PAGE 2
<PAGE> 139
LEXINGTON CORPORATE PROPERTIES, INC. PAGE 2
NOTE: SEC Registration #33-66858 effective 8/4/93.
Reincorporation Merger: Lexington Corporate Properties,
Inc., a Delaware corporation organized 10/14/92 (File
#2312627), merged into Lexington Corporate Properties-
Maryland, Inc., the Maryland corporation, on June 27,
1994; at the time of the merger the Maryland Corporate
name was changed to Lexington Corporate Properties, Inc.
<PAGE> 140
LEPERCQ CORPORATE INCOME FUND L.P.
<TABLE>
<S> <C> <C> <C>
FORMED: March 14, 1986 Delaware (CT)
QUALIFIED: Arizona (CT) December 5, 1986
California (CT) September 26, 1986 WITHDRAWAL 11/22/95
Connecticut (Sec.State) October 6, 1986
Hawaii (CT) February 3, 1997
Illinois (CT) July 1, 1987 WITHDRAWAL 11/15/95
Massachusetts (CT) February 6, 1990
Michigan September 8, 1987 WITHDRAWAL PENDING
New Jersey July 10, 1987 WITHDRAWAL PENDING
New York July 30, 1987 WITHDRAWAL PENDING
Ohio (CT) November 22, 1994 WITHDRAWAL PENDING
Oklahoma (CT) January 9, 1997
Oregon (CT) February 3, 1997
Pennsylvania (Sec.St) January 11, 1991 WITHDRAWAL PENDING
Tennessee (CT) December 18, 1989 WITHDRAWAL PENDING
Texas (CT) January 9, 1997
Washington (CT) January 13, 1997
</TABLE>
GENERAL PARTNER: Lex GP-1, Inc. (.732%)
LIMITED PARTNERS: Lex LP-1, Inc. (73.713%)
SPECIAL L Ps: Roskind (.505%); Rouse (.194%); Whiting (.109%);
Altabef (.079%); Peterson (.031%); A. Monk (.049%);
E. Monk (.049); The LCP Group (.339%)--Total 1.355%.
PROPERTY L Ps: Barnes Rockshire Associates Limited Partnership (.4412%)
Barngiant Livingston Associates Limited Partnership
(.6312%)
Barnhale Modesto Properties (.282%)
Barnhech Montgomery Associates Limited Partnership
(.143%)
Barnvyn Bakersfield Associates L.P. (.09%)
Barnward Brownsville Properties (.424%)--Total 2.0114%.
RED BUTTE L Ps: Red Butte Creek Associates Limited Partnership (22.1886%)
EXPANSION L Ps: Toy Properties Associates II
Toy Properties Associates V
Fort Street Partners Limited Partnership
CONTINUED ON PAGE 2
<PAGE> 141
LEPERCQ CORPORATE INCOME FUND L.P. PAGE 2
TAX ID#: 13-3779859 (old: 13-3356627)
TERM: 12/31/2093
PROPERTY: Glendale, AZ: Honeywell (purch. 11/24/86)
Southington, CT: Hartford Fire Ins. (purch. 10/2/86)
Honolulu, HI: Liberty House (transfer Fort Street 12/31/96)
Marlborough, MA: Stratus Computer (purch. 1/30/90)
Tulsa, OK: Toys`R'Us (transfer Toys II 12/31/96)
Clackamas, OR: Toys`R'Us (transfer Toys II 12/31/96)
Houston, TX: Toys`R'Us (transfer Toys V 12/31/96)
Salt Lake City, UT: Northwest Pipeline (transfer Red Butte
5/22/96)
Lynwood, WA: Toys`R'Us (transfer Toys II 12/31/96)
NOTE: Delaware File #2085780
Previously Qualified in Oregon 9/17/87 and withdrew
9/13/95. Property L Ps closed August 1, 1995 (exchange of
L.P. Units only) Red Butte L Ps closed May 22, 1996
Expansion L Ps closed December 31, 1996
<PAGE> 142
LEPERCQ CORPORATE INCOME FUND L.P.
(OFFERING COMMENCED IN JULY , 1986)
---------------------------------------
LEPERCQ CORPORATE INCOME FUND L.P.
("LCIF")
---------------------------------------
/ | \
/ | \
- ------------------- --------------------------------- -----------------
G.P. SPECIAL L.P.S (1.75%)* L.P. (97.25%)
Lex LP-1, Inc. Roskind, Rouse, Whiting, Altabef, Lex GP-1,Inc.
- ------------------- Peterson, A. Monk, E. Monk, and -----------------
\ The LCP Group /
\ --------------------------------- /
\ /
\ /
------------------------------------
Lexington Corporate Properties, Inc.
(Sole Shareholder)
------------------------------------
|
|
----------------------------------------
Shareholders:
Former Unitholders in LCIF I and II L.P.
----------------------------------------
<PAGE> 143
LEPERCQ CORPORATE INCOME FUND II L.P.
<TABLE>
<S> <C> <C> <C>
FORMED: January 27, 1987 Delaware (CT)
QUALIFIED: Arizona (CT) November 29, 1988
California (CT) October 18, 1988 WITHDRAWAL 11/22/95
Florida (CT) October 26, 1987
Minnesota (CT) April 4, 1988 WITHDRAWAL PENDING
Nevada (CT) November 29, 1988 WITHDRAWAL 12/11/95
Oregon (CT) February 16, 1988 WITHDRAWAL 9/13/95
</TABLE>
GENERAL PARTNER: Lex GP-1, Inc. (1%)
LIMITED PARTNERS: Lex LP-1, Inc. (97.25%)
SPECIAL L PS: Roskind (.65973%); Rouse (.25356%); Whiting (.14168%);
Altabef (.10318%); A. Monk (.06650%);
E. Monk (.06650%); The LCP Group (.45885%)--Total 1.75%.
G.P. OF:
TAX ID#: 13-3779864 (old: 13-3414611)
TERM: 12/31/2093
PROPERTY: Phoenix, AZ: Bank One (purch. 11/30/88)
Jacksonville, FL: Unisource (purch. 7/28/88)
Tampa, FL: Time, Inc. (purch. 3/31/88)
Tampa, FL: Time Cust. Svc. (purch. 11/3/87)
NOTE: See Partnership Schematic.
The former General Partner Lex GP-2, Inc., and Limited
Partner Lex LP-2, Inc., merged into the current G.P. and
L.P. on 12/29/95.
<PAGE> 144
LEPERCQ CORPORATE INCOME FUND II L.P.
(OFFERING COMMENCED IN DECEMBER , 1987)
----------------------------------------
LEPERCQ CORPORATE INCOME FUND II L.P.
("LCIF II")
----------------------------------------
/ | \
/ | \
- ---------------- ----------------------------------- ---------------
G.P. (1%) SPECIAL L.P.S (1.75%)* L.P. (97.25%)
Lex LP-1, Inc. Roskind, Rouse, Whiting, Altabef, Lex GP-1,Inc.
- ---------------- A. Monk, E. Monk, and The LCP Group ---------------
\ ----------------------------------- /
\ /
----------------------------------------
Lexington Corporate Properties, Inc.
(Sole Shareholder)
----------------------------------------
|
|
----------------------------------------
Shareholders:
Former Unitholders in LCIF I and II L.P.
----------------------------------------
<PAGE> 145
LEX GP-1, INC.
<TABLE>
<S> <C> <C> <C>
ORGANIZED: Delaware (CT) July 21, 1993
QUALIFIED: Arizona (CT) November 25, 1994
California (CT) November 4, 1994 WITHDRAWAL 12/5/95
Florida (CT) April 8, 1996
Hawaii (CT) February 3, 1997
Illinois (CT) November 9, 1994 WITHDRAWAL 10/10/95
Massachusetts (CT) November 3, 1994
Ohio (CT) November 22, 1994 WITHDRAWAL 9/95
Oregon (CT) February 3, 1997
Tennessee (CT) February 4, 1994 WITHDRAWAL 9/95
</TABLE>
STOCK: Authorized: 100 Common, $0.001 Par
Value
Issued & Out: 100 Shs. @ $100 Agg. to
Lex. Corp. Prop.
DIRECTORS: E. Robert Roskind
Richard J. Rouse
T. Wilson Eglin
OFFICERS: Chairman: E. Robert Roskind
President: E. Robert Roskind
Vice Presidents: Richard J. Rouse
T. Wilson Eglin
Antonia G. Trigiani
Secretary: Richard J. Rouse
Treasurer: T. Wilson Eglin
Assistant Secretary: Antonia G. Trigiani
Tax ID#: 13-3797734
DESCRIPTION: New General Partner of LCIF L.P.
PROPERTY:
NOTE: LEX GP-2, INC. MERGED INTO THIS CORP. ON 12/29/95.
In Arizona Lex GP-2, Inc. merged into this corp. 3/7/96.
Delaware File #2344678
Previously qualified in Oregon 2/3/94 and withdrew
9/13/95.
<PAGE> 146
LEX LP-1, INC.
<TABLE>
<S> <C> <C>
ORGANIZED: Delaware (CT) July 21, 1993
QUALIFIED:
STOCK: Authorized: 100 Common, $0.001 Par Value
Issued & Out: 100 Shs. @ $100 Agg. to Lex. Corp. Prop.
DIRECTORS: E. Robert Roskind
Richard J. Rouse
T. Wilson Eglin
OFFICERS: Chairman: E. Robert Roskind
President: E. Robert Roskind
Vice Presidents: Richard J. Rouse
T. Wilson Eglin
Antonia G. Trigiani
Secretary: Richard J. Rouse
Treasurer: T. Wilson Eglin
Assistant Secretary: Antonia G. Trigiani
TAX ID#: 13-3797736
</TABLE>
DESCRIPTION: New Limited Partner of LCIF L.P. (Was limited partner of
Lex M-1, L.P. which merged into LCIF L.P. on 10/12/93.)
PROPERTY:
NOTE: LEX LP-2, INC. MERGED INTO THIS CORP. ON 12/29/95.
Delaware File #2344676.
<PAGE> 147
LXP CANTON, INC.
<TABLE>
<S> <C> <C>
ORGANIZED: Delaware (CT) December 27, 1995
QUALIFIED: Ohio (CT) January 24, 1996
STOCK: Authorized: 1,000 Common, $0.01 Par Value
Issued & Out: 1,000 Shares @ $10. Agg. to Lexington (100%)
DIRECTORS: E. Robert Roskind
Richard J. Rouse
T. Wilson Eglin
OFFICERS: President: E. Robert Roskind
Vice Presidents: Richard J. Rouse
T. Wilson Eglin
Antonia G. Trigiani
Paul R. Wood
Secretary: Antonia G. Trigiani
Treasurer: T. Wilson Eglin
Assistant Secretary: Paul R. Wood
TAX ID#: 13-3873869
</TABLE>
DESCRIPTION: Acquired Canton, OH property from Lexington and holds
loan from Merrill Lynch Credit Corporation.
PROPERTY: Canton, OH: Scandinavian Health Spa
NOTE: Delaware File #2575810
<PAGE> 148
LXP FUNDING CORP.
<TABLE>
<S> <C> <C>
ORGANIZED: Delaware (CT) April 12, 1995
QUALIFIED: New York April 26, 1995
STOCK: Authorized: 1,000 Common, $0.01 Par Value
Issued & Out: 100 Shares to Lexington Corp Prop (100%)
DIRECTORS: E. Robert Roskind Francis P. Lively, Jr.
Richard J. Rouse John B. Vander Zwaag
T. Wilson Eglin
Officers: President: E. Robert Roskind
Vice Presidents: Richard J. Rouse
T. Wilson Eglin
Antonia G. Trigiani
Secretary: Antonia G. Trigiani
Treasurer: T. Wilson Eglin
TAX ID#: 13-3828788
</TABLE>
DESCRIPTION: Organized to acquire a mortgage loan and assign the
mortgage notes, the mortgage and other collateral to a
Trustee (REMIC). The borrowers, LXP I, L.P. and LXP II,
L.P., will acquire 15 properties from LCIF I and II.
PROPERTY:
NOTE: Delaware File #2498392
<PAGE> 149
LXP I, L.P.
<TABLE>
<S> <C> <C>
FORMED: April 12, 1995 Delaware (CT)
QUALIFIED: California (CT) 4/26/95 #9511800017
Illinois (CT) 4/26/95 #S009751
Michigan (CT) 4/25/95 #L92-329
New Jersey (CT) 4/27/95
New York 4/26/95
Ohio (CT) 4/26/95 #95042634102
Oregon (CT) 4/26/95 #455546-80
Pennsylvania (CT) 4/25/95 #2634233
Tennessee (CT) 4/26/95 #0293911
GENERAL PARTNER: LXP I, Inc. (1%)
LIMITED PARTNER: Lepercq Corporate Income Fund L.P. (99%)
G. P. OF:
TAX ID#: 13-3828793
</TABLE>
TERM: 4/1/2035
PROPERTY: Modesto, CA: Continental Can/Crown Cork & Seal
(purch. 9/26/86)
Newark, CA: Ross Stores Headquarters (purch. 9/1/87)
Countryside, IL: Bally Total Fitness (purch. 7/13/87)
Marshall, MI: 2 Tenneco Automotive stores/Walker Mfg.
(purch. 8/18/87)
Voorhees, NJ: Bally Total Fitness (purch. 7/15/87)
Dewitt, NY: Bally Total Fitness (purch. 8/19/87)
Mansfield, OH: White Consolidated (purch. 7/28/87)
Newport, OR: Fred Meyer store owned by F.M. Associates
(purch. 9/9/87)
Mechanicsburg, PA: NFC Public Limited/Excel Log.
(purch. 10/5/90)
Memphis, TN: Federal Express (purch. 2/24/88)
NOTE: See Partnership Schematic.
REMIC--Issuer is LXP Funding Corp.
All 11 properties were transferred from LCIF L.P. on
5/19/95.
Subsidiary of Lexington which is the sole shareholder of
LXP I, Inc.
Delaware File #2498758
<PAGE> 150
LXP II, L.P.
<TABLE>
<S> <C> <C>
FORMED: April 12, 1995 Delaware (CT)
QUALIFIED: California (CT) 4/26/95 #9511800021
Nevada (CT) 4/26/95 #577-95
New York 5/10/95
Oregon (CT) 4/26/95 #455551-82
</TABLE>
GENERAL PARTNER: LXP II, Inc. (1%)
LIMITED PARTNER: Lepercq Corporate Income Fund II L.P. (99%)
G. P. OF:
TAX ID#: 13-3828798
TERM: 4/1/2035
PROPERTY: Sacramento, CA: Circuit City Store (purch. 10/27/88)
Las Vegas, NV: Circuit City Store (purch. 12/20/88)
Reno, NV: Circuit City Store (purch. 12/20/88)
Klamath Falls, OR: Fred Meyer (purch. 3/9/88)
NOTE: See Partnership Schematic.
REMIC--Issuer is LXP Funding Corp.
All 4 properties were transferred from LCIF II L.P. on
5/19/95. Subsidiary of Lexington which is the sole
shareholder of LXP II, Inc.
Delaware File #2498691
<PAGE> 151
LXP I, INC.
<TABLE>
<S> <C> <C>
ORGANIZED: Delaware (CT) April 12, 1995
QUALIFIED: California (CT) April 26, 1995
Illinois (CT) April 25, 1995
Michigan (CT) April 25, 1995
New Jersey (CT) April 27, 1995
New York April 26, 1995
Ohio (CT) April 26, 1995
Oregon (CT) April 26, 1995
Pennsylvania (CT) April 25, 1995
Tennessee (CT) April 25, 1995
STOCK: Authorized: 1,000 Common, $0.01 Par Value
Issued & Out: 100 Shares @ $100. Agg. to Lexington (100%)
DIRECTORS: E. Robert Roskind T. Wilson Eglin
Richard J. Rouse John B. Vander Zwaag
OFFICERS: President: E. Robert Roskind
Vice Presidents: Richard J. Rouse
T. Wilson Eglin
Antonia G. Trigiani
Secretary: Antonia G. Trigiani
Treasurer: T. Wilson Eglin
TAX ID#: 13-3828792
</TABLE>
DESCRIPTION: Sole general partner of LXP I, L.P., which acquired 11
properties from LCIF L.P. on May 19, 1995.
PROPERTY: California: Modesto - Continental Can; Newark - Ross
Stores Hqtrs.
Illinois: Countryside - Health & Tennis
Michigan: Marshall - 2 Tenneco
New Jersey: Voorhees - Health & Tennis
New York: Dewitt - Health & Tennis
Ohio: Mansfield - White Consolidated
Oregon: Newport - Fred Meyer Store
Pennsylvania: Mechanicsburg - NFC Public Limited
Tennessee: Memphis - Federal Express
NOTE: Delaware File #2498388
<PAGE> 152
LXP II, INC.
<TABLE>
<S> <C> <C>
ORGANIZED: Delaware (CT) April 12, 1995
QUALIFIED: California (CT) April 26, 1995
Nevada (CT) May 8, 1995
New York May 10, 1995
Oregon (CT) April 26, 1995
STOCK: Authorized: 1,000 Common, $0.01 Par Value
Issued & Out: 100 Shares @ $100. Agg. to Lexington (100%)
DIRECTORS: E. Robert Roskind T. Wilson Eglin
Richard J. Rouse Francis P. Lively, Jr.
OFFICERS: President: E. Robert Roskind
Vice Presidents: Richard J. Rouse
T. Wilson Eglin
Antonia G. Trigiani
Secretary: Antonia G. Trigiani
Treasurer: T. Wilson Eglin
TAX ID#: 13-3828796
</TABLE>
DESCRIPTION: Sole general partner of LXP II, L.P., which acquired 4
properties from LCIF II L P. on May 19, 1995.
PROPERTY: Sacramento, CA: Circuit City
Las Vegas, NV: Circuit City
Reno, NV: Circuit City
Klamath Falls, OR: Fred Meyer
NOTE: Delaware File #2498390
<PAGE> 153
NORTH TAMPA ASSOCIATES -Owner of building in Tampa, FL
net leased to Time, Inc.
------------------------
NORTH TAMPA ASSOCIATES
------------------------
/ \
/ \
- ------------------------------------- --------------------
MANAGING PARTNER (99.9%) PARTNER (0.1%)
Lepercq Corporate Income Fund II L.P. North Tampa-II, Inc.
- ------------------------------------- --------------------
/ |
/ |
- -------------- -------------------
G.P. The LCP Group, L.P.
Lex GP-2, Inc. (Sole Shareholder)
- -------------- -------------------
|
|
- ------------------------------------
Lexington Corporate Properties, Inc.
(Sole Shareholder)
- ------------------------------------
<PAGE> 154
UNION HILLS ASSOCIATES - Owner of Glendale, AZ building
net leased to Honeywell (orig.
tenant: Sperry Space Systems).
------------------------
UNION HILLS ASSOCIATES
------------------------
/ \
/ \
- ----------------------------------- -------------------------
MANAGING PARTNER (99%) PARTNER (1%)
Lepercq Corporate Income Fund L.P.* Union Hills Associates II
- ----------------------------------- -------------------------
/ / \
/ / \
- -------------- ---------------------- -----------------
G.P. MANAGING PARTNER (99%) PARTNER (1%)
Lex GP-1, Inc. LCIF L.P. * Union Hills, Inc.
- -------------- ---------------------- -----------------
| | |
| | |
- ------------------- -------------- -------------------
Lexington Corporate G.P. The LCP Group, L.P.
Properties, Inc. Lex GP-1, Inc. (Sole Shareholder)
(Sole Shareholder)
- ------------------- -------------- -------------------
|
|
------------------------------------
Lexington Corporate Properties, Inc.
(Sole Shareholder)
------------------------------------
<PAGE> 155
UNION HILLS, INC.
<TABLE>
<S> <C> <C>
ORGANIZED: Delaware (CT) October 10, 1986
QUALIFIED: Arizona (CT) November 21, 1986
Oregon (CT) December 20, 1988
STOCK: Authorized: 1,000 Common, $1.00 Par Value
Issued & Out: 1,000 Shares @ $1,000. Agg. to LCP Group (100%)
DIRECTORS: E. Robert Roskind
OFFICERS: President: E. Robert Roskind
Vice Presidents: Richard J. Rouse
Antonia G. Trigiani
Denise E. DeBaun
T. Wilson Eglin
Secretary: E. Robert Roskind
Assistant Secretary: Antonia G. Trigiani
TAX ID#: 13-3378935
</TABLE>
DESCRIPTION: A Partner of Union Hills Associates II, which is an
Arizona General Partnership, and of F.M. Associates II,
which is an Oregon General Partnership; LCIF is the
Managing Partner of both partnerships, as well as of
Union Hills Associates and F.M. Associates.
PROPERTY: Phoenix, AZ - Honeywell - formerly Sperry Space (Union)
Newport, OR - Fred Meyer Store (F.M.)
NOTE: Delaware File #2104152
LCIF pays all expenses
Stock transferred from Lepercq Lease Associates as of
1/1/94.
<PAGE> 156
NORTH TAMPA-II, INC.
<TABLE>
<S> <C> <C>
ORGANIZED: Delaware (CT) March 29, 1988
QUALIFIED:
STOCK: Authorized: 200 Common, $0.01 Par Value
Issued & Out: 1 Share @ $10.00 Agg. to LCP Group (100%)
DIRECTORS: E. Robert Roskind
OFFICERS: President: E. Robert Roskind
Vice Presidents: Antonia G. Trigiani
Denise E. DeBaun
T. Wilson Eglin
Secretary: E. Robert Roskind
Assistant Secretary: Antonia G. Trigiani
TAX ID#: 13-3468072
</TABLE>
DESCRIPTION: A Partner of North Tampa Associates, which is a Florida
General Partnership that owns a building in Tampa,
Florida net leased to Time, Inc.; Lepercq Corporate
Income Fund II L.P. is the Managing Partner.
PROPERTY: Tampa, FL - Time, Inc.
NOTE: Delaware File #2156210
LCIF II pays all expenses.
<PAGE> 157
LEX LP-2, INC.
<TABLE>
<S> <C> <C>
ORGANIZED: Delaware (CT) July 21, 1993
QUALIFIED:
STOCK: Authorized: 100 Common, $0.0001 Par Value
Issued & Out: 100 Shs. @ $100 Agg. to Lex. Corp. Prop.
DIRECTORS: E. Robert Roskind
Richard J. Rouse
T. Wilson Eglin
OFFICERS: Chairman: E. Robert Roskind
President: E. Robert Roskind
Vice Presidents: Richard J. Rouse
T. Wilson Eglin
Antonia G. Trigiani
Secretary: Richard J. Rouse
Treasurer: T. Wilson Eglin
Assistant Secretary: Antonia G. Trigiani
TAX ID#: 13-3797739
</TABLE>
DESCRIPTION: New Limited Partner of LCIF II L.P. (Was limited partner
of Lex M-2, L.P. which merged into LCIF II L.P. on
10/12/93.)
PROPERTY:
NOTE: Delaware File #2344675.
<PAGE> 158
EXHIBIT L
COVENANT COMPLIANCE CERTIFICATE
Fleet National Bank
111 Westminster Street, Suite 800
Providence, Rhode Island 02903
Attention: Commercial Real Estate Group
Gentlemen:
Reference is made to that certain Amended and Restated Revolving Credit
Agreement dated as of February ___, 1997 (such agreement, as it may be or may
have been amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"; capitalized terms used herein without definition
shall have the respective meanings assigned to those terms in the Credit
Agreement) among Lexington Corporate Properties, Inc.; Lepercq Corporate Income
Fund, L.P.; Lepercq Corporate Income Fund II, L.P.; Union Hills Associates;
North Tampa Associates; LEX GP-1, Inc. and LEX GP-2, Inc., jointly and
severally, as Borrowers, the institutions from time to time party thereto as
Lenders and Fleet National Bank, as Agent ("Agent").
Pursuant to Section 6.1 and 6.2 of the Credit Agreement, the undersigned
hereby certifies and warrants to Agent and each of the Lenders on behalf of each
Borrower that as of _________, 199_:
1. The financial statements attached hereto were prepared in
accordance with GAAP and present fairly the financial condition and
results of operations of ____________ as of _____________, and for the
_________ ended on ___________, 199_.
2. The representations and warranties set forth in the Credit
Agreement were true and correct for each Borrower with the same effect
as if made on and as of this date, except as follows (if any):
_______________
3. Attached as Schedule I and Schedule II hereto is an
accurate statement of the data regarding the financial covenants
referenced in the sections of the Credit Agreement specified in the
left-hand margin of Schedule I. Each Borrower has duly performed and
complied with each covenant, condition, agreement and other obligation
of or applicable to such Borrower under the Credit Agreement and each
other "Loan Document" as defined therein, except as follows (if any):
_______________
4. No Default or Event of Default under the Credit Agreement
exist, except as follows (if any):
_______________
<PAGE> 159
In preparing this Certificate and attached Schedules, an authorized
officer of the undersigned entity has conducted, or caused to be conducted under
his or her supervision, such investigations as in his or her opinion are
necessary and satisfactory in scope and substance to determine the facts set
forth herein and upon which Agent, each of the Lenders and the undersigned
entity are justified in relying; provided, however, Agent acknowledges on behalf
of itself and each of the Lenders that in preparing this Certificate and any
attached Schedules hereto, the undersigned has relied on any information
provided by Recognized Appraisers and Borrower's independent certified public
accountants without further inquiry or investigation; provided further, however,
that the undersigned has no knowledge of any facts or circumstances which would
give the undersigned reason to doubt the accuracy of such information in any
material respect.
WITNESS the due execution of this Certificate by the undersigned's duly
authorized representative on ___________, 199_.
LEXINGTON CORPORATE PROPERTIES, INC.,
as Borrowers' Agent
By:_______________________________________
its:___________________________________
- 2 -
