<PAGE> 1
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 1-12386
LEXINGTON CORPORATE PROPERTIES TRUST
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MARYLAND 13-3717318
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
355 LEXINGTON AVENUE NEW YORK, NY 10017
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (212) 692-7260
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
- ------------------------------------------- ----------------------------------------------
COMMON SHARES, PAR VALUE $.0001 NEW YORK STOCK EXCHANGE
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: NONE
Indicate by check mark whether the Registrant: (1) has filed all reports
required to be filed by Section 13 or 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 by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K (sec.229.405 of this chapter) is not contained herein, and
will not be contained, to the best of Registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. [X]
The aggregate market value of the voting shares held by non-affiliates of
the Registrant as of February 26, 1999 was $196,297,862.
Number of common shares outstanding as of February 26, 1999 was 17,279,537.
Number of preferred shares outstanding as of February 26, 1999 was
2,000,000.
DOCUMENTS INCORPORATED BY REFERENCE:
The Definitive Proxy Statement for Registrant's 1999 Annual Meeting of
Shareholders is incorporated herein by reference into Part III.
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<PAGE> 2
PART I.
FORWARD-LOOKING STATEMENTS
When used in this Form 10-K Annual Report, the words "believes," "expects,"
"estimates" and similar expressions are intended to identify forward-looking
statements. Such statements are subject to certain risks and uncertainties which
could cause actual results to differ materially. In particular, among the
factors that could cause actual results to differ materially are continued
qualification as a real estate investment trust, general business and economic
conditions, competition, increases in real estate construction costs, interest
rates, accessibility of debt and equity capital markets and other risks inherent
in the real estate business including tenant defaults or financial difficulties,
potential liability relating to environmental matters and illiquidity of real
estate investments. Readers are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date hereof. The Company
undertakes no obligation to publicly release the results of any revisions to
these forward-looking statements which may be made to reflect events or
circumstances after the date hereof or to reflect the occurrence of
unanticipated events.
ITEM 1. BUSINESS
GENERAL
Lexington Corporate Properties Trust (the "Company"), is a self-managed and
self-administered real estate investment trust that acquires, owns and manages a
geographically diverse portfolio of net leased office, industrial and retail
properties. The Company's predecessor was organized in October 1993 and merged
into the Company on December 31, 1997.
As of December 31, 1998, the Company's real property portfolio consisted of
66 properties (or interests therein) (the "Properties") located in twenty-nine
states, including warehousing, distribution and manufacturing facilities, office
buildings and retail properties containing an aggregate 10.9 million net
rentable square feet of space. The Company's Properties are subject to triple
net leases, which are generally characterized as leases in which the tenant
bears all, or substantially all, of the costs and cost increases for real estate
taxes, insurance and ordinary maintenance.
The Company manages its real estate and credit risk through geographic,
industry, tenant and lease maturity diversification. As of December 31, 1998 the
five largest tenants/guarantors, which occupy 9 Properties, represented 39.3% of
annualized revenues:
<TABLE>
<CAPTION>
% OF
RENTAL
TENANT/GUARANTOR REVENUE
---------------- -------
<S> <C>
Kmart Corporation -- 1 property............................. 11.9%
Northwest Pipeline Corp. -- 1 property...................... 11.4%
Exel Logistics, Inc. -- 4 properties........................ 6.6%
Honeywell, Inc. -- 2 properties............................. 4.7%
FirstPlus Financial Group, Inc. -- 1 property............... 4.7%
----
39.3%
====
</TABLE>
As of December 31, 1997 and 1996 the five largest tenants/guarantors
represented 48.1% and 45.7% of annualized revenues, respectively. Northwest
Pipeline Corp. is the only current tenant that represented greater than 10% of
annualized revenues in 1997 and 1996.
OBJECTIVES AND STRATEGY
The Company's primary objectives are to increase Funds From Operations and
cash available for distribution per share to its shareholders. In an effort to
obtain these objectives management focuses on:
- effectively managing assets through lease extensions, revenue enhancing
property expansions, opportunistic property sales and redeployment of
assets, when advisable;
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- acquiring portfolios and individual net lease properties from third
parties, completing sale/lease-back transactions, acquiring build-to-suit
properties, acquiring properties from affiliated net lease partnerships
and opportunistic use of our operating partnership units;
- refinancing existing indebtedness at lower average interest rates and
increasing the Company's access to capital to finance property
acquisitions and expansions;
- entering into strategic co-investment programs which generate higher
equity returns than direct investments due to acquisition and asset
management fees and in some cases increased leverage levels; and
- strategic repurchase of common shares.
Internal Growth; Effectively Managing Assets
Tenant Relations and Lease Compliance. The Company maintains close contact
with its tenants in order to understand their future real estate needs. The
Company monitors the financial, property maintenance and other lease obligations
of its tenants through a variety of means, including periodic reviews of
financial statements and physical inspections of the Properties. The Company
performs annual inspections of those Properties where it has an ongoing
obligation with respect to the maintenance of the Property and for all
Properties during each of the last three years immediately prior to a scheduled
lease expiration. Biannual physical inspections are undertaken for all other
Properties.
Extending Lease Maturities. The Company seeks to extend its leases in
advance of their expiration in order to maintain a balanced lease rollover
schedule. Since February 1994, the Company has entered into lease extensions of
three years or more on 12 of its Properties.
As of December 31, 1998, the scheduled lease maturities for each of the
next five years are as follows:
<TABLE>
<CAPTION>
NUMBER CURRENT % OF
OF SQUARE ANNUAL ANNUALIZED
LEASES FOOTAGE RENT ($000'S) RENTS
--------- --------- ------------- ----------
<S> <C> <C> <C> <C>
1999.................................. 0 0 $ 0 0
2000.................................. 2 249,240 654 0.87%
2001.................................. 4 818,944 3,255 4.33%
2002.................................. 4 653,386 2,833 3.77%
2003.................................. 1 179,280 1,900 2.53%
-- --------- ------ -----
11 1,900,850 $8,642 11.50%
== ========= ====== =====
</TABLE>
Revenue Enhancing Property Expansions. The Company undertakes expansions
of its Properties based on tenant requirements. The Company believes that
selective property expansions can provide it with attractive rates of return and
actively seeks such opportunities.
Property Sales and Redeployment of Assets. The Company may determine to
sell a Property, either to the Property's existing tenant or to a third party,
if it deems such disposition to be in the Company's best interest. Since 1993,
the Company has sold three Properties, generating an aggregate net gain of $4.6
million.
Acquisition Strategies
The Company seeks to enhance its net lease property portfolio through
acquisitions of general purpose, efficient, well-located properties in growing
markets. Management has diversified the Company's portfolio by geographical
location, tenant industry segment, lease term expiration and property type with
the intention of providing steady internal growth with low volatility.
Management believes that such diversification should help insulate the Company
from regional recession, industry specific downturns and price fluctuations by
property type. Prior to effecting any acquisitions, management analyzes the (i)
property's design, construction quality, efficiency, functionality and location
with respect to the immediate sub-market, city and region; (ii) lease integrity
with respect to term, rental rate increases, corporate guarantees and property
maintenance provisions;
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(iii) present and anticipated conditions in the local real estate market; and
(iv) prospects for selling or releasing the property on favorable terms in the
event of a vacancy. Management also evaluates each potential tenant's financial
strength, growth prospects, competitive position within its respective industry
and a property's strategic location and function within a tenant's operations or
distribution systems. Management believes that its comprehensive underwriting
process is critical to the assessment of long-term profitability of any
investment by the Company.
Operating Partnership Structure. The operating partnership structure
enables the Company to acquire properties by issuing to a seller, as a form of
consideration, interests in the Company's operating partnerships ("OP Units").
Management believes that this structure facilitates the Company's ability to
raise capital and to acquire portfolio and individual properties by enabling the
Company to structure transactions which may defer tax gains for a contributor of
property while preserving the Company's available cash for other purposes,
including the payment of dividends and distributions. The Company has used OP
Units as a form of consideration in connection with the acquisition of 22
Properties.
Acquisitions of Portfolio and Individual Net Lease Properties. The Company
seeks to acquire portfolio and individual properties that are leased to
creditworthy tenants under long-term net leases. Management believes there is
significantly less competition for the acquisition of property portfolios
containing a number of net leased properties located in more than one geographic
region. Management also believes that the Company's geographical
diversification, acquisition experience and access to capital will allow it to
compete effectively for the acquisition of such net leased properties.
Sale/Leaseback Transactions. The Company seeks to acquire portfolio and
individual net lease properties in sale/leaseback transactions. The Company
selectively pursues sale/leaseback transactions with creditworthy
sellers/tenants with respect to properties that are integral to the
sellers/tenants ongoing operations.
Build-to-suit Properties. The Company may also acquire, after construction
has been completed, "build-to-suit" properties that are entirely pre-leased to
their intended corporate users before construction. As a result, the Company
does not assume the risk associated with the construction phase of a project.
During 1998, the Company acquired two "build-to-suit" properties net leased to
Fleet Mortgage Group, Inc. and Lear Technologies LLC (General Motors guarantor)
for an aggregate cost of $29.0 million and an average unleveraged yield of
10.35%. The Company is also obligated to purchase a third "build-to-suit"
property, which will be net leased to Blue Cross/Blue Shield of South Carolina,
for $38.7 million with a scheduled delivery date no later than January 2000.
Acquisitions from Affiliated Net Lease Partnerships. Management believes
that net lease partnerships affiliated with the Company provide it with an
opportunity to acquire properties with which management is already familiar. As
of December 31, 1998, the Company had acquired 14 Properties from affiliated
limited partnerships. In addition, on January 29, 1998, the Company completed
the acquisition of partnership interests in two limited partnerships, one of
which was an affiliate of an officer of the Company, in exchange for the
Company's OP Units. The sole assets of the partnerships acquired was
approximately $23.5 million in cash.
The LCP Group, L.P. ("LCP"), an affiliate of E. Robert Roskind, Chairman of
the Board of Trustees and Co-Chief Executive Officer of the Company, has granted
the Company an option exercisable at any time, to acquire general partnership
interests currently owned by LCP in two limited partnerships, Net 1, L.P. and
Net 2, L.P. (together, the "Net Partnerships"), which own net leased office,
industrial and retail properties. The Net Partnerships own a total of 62
single-tenant properties located in 16 states which contain approximately 1.6
million net rentable square feet. The tenants of such properties include Alco
Standard Corporation, Ameritech Services, Honeywell, Inc. and Wal-Mart Stores,
Inc. Under the terms of the option, the Company, subject to review of any such
transaction by the independent members of its Board of Trustees, may acquire the
general partnership interests at their fair market value based upon a formula
relating to partnership cash flows, with the Company retaining the option of
paying such fair market value in securities of the Company, OP Units, cash or a
combination thereof.
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<PAGE> 5
Refinancing Existing Indebtedness and Increasing Access to Capital
As a result of the Company's financing activities, the weighted average
interest rate on the Company's outstanding indebtedness has been reduced from
approximately 10.00% as of December 31, 1994 to approximately 7.65% as of
December 31, 1998. In addition, management is constantly pursuing opportunities
to increase the Company's access to public and private capital in order to
achieve maximum operating flexibility. Scheduled balloon payments, excluding the
$52.6 million outstanding on the variable rate unsecured credit facility, over
the next five years are as follows:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
BALLOON AMOUNT INTEREST RATE
-------------- -------------
<S> <C> <C>
1999..................................................... $ 5,563,000 10.750%
2000..................................................... 13,093,000 8.875%
2001..................................................... 1,000,000 9.500%
2002..................................................... 9,559,000 7.250%
2003..................................................... -- --
----------- ------
$29,215,000 8.72 %
=========== ======
</TABLE>
The Company's variable rate unsecured credit facility bears interest at
137.5 basis points over the Company's option of 1, 3 or 6 month LIBOR and is
scheduled to mature in July 2001. As of December 31, 1998, $51.2 million of the
outstanding borrowing under this facility bears interest at 6.6875% fixed
through June 1, 1999 with the remaining $1.4 million bearing interest at 6.4375%
through March 1, 1999. On March 1, 1999 the $1.4 million borrowing was extended
through April 1, 1999 at an interest rate of 6.375%.
Common Share Repurchase. On September 15, 1998, the Company's Board of
Trustees authorized the repurchase of up to 1 million common shares. As of
December 31, 1998 the Company has repurchased 129,875 common shares at an
average price of $11.92, all of which have been retired.
Competition. The real estate business is highly competitive and the
Company competes with numerous established companies having significant
resources and experience.
Environmental Matters. Under various federal, state and local
environmental laws, statutes, ordinances, rules and regulations, an owner of
real property may be liable for the costs of removal or redemption of certain
hazardous or toxic substances at, on, in or under such property as well as
certain other potential costs relating to hazardous or toxic substances
(including government fines and penalties and damages for injuries to persons
and adjacent property). Such laws often impose liability without regard to
whether the owner knew of, or was responsible for, the presence or disposal of
such substances. Although the Company's tenants are primarily responsible for
any environmental damage and claims related to the leased premises, in the event
of the bankruptcy or inability of the tenant of such premises to satisfy any
obligations with respect thereto, the Company may be required to satisfy such
obligations. In addition, under certain environmental laws, the Company, as the
owner of such properties, may be held directly liable for any such damages or
claims irrespective of the provisions of any lease.
From time to time, in connection with the conduct of the Company's
business, and prior to the acquisition of any property from a third party or as
required by the Company's financing sources, the Company authorizes the
preparation of Phase I environmental reports with respect to its Properties.
Based upon such environmental reports and management's ongoing review of its
Properties, as of the date of this Annual Report, management was not aware of
any environmental condition with respect to any of the Company's Properties
which management believed would be reasonably likely to have a material adverse
effect on the Company. There can be no assurance, however, that (i) the
discovery of environmental conditions, the existence or severity of which were
previously unknown, (ii) changes in law, (iii) the conduct of tenants or (iv)
activities relating to properties in the vicinity of the Company's Properties,
will not expose the Company to material liability in the future. Changes in laws
increasing the potential liability for environmental conditions existing on
properties or increasing the restrictions on discharges or other conditions may
result in
4
<PAGE> 6
significant unanticipated expenditures or may otherwise adversely affect the
operations of the Company's tenants, which would adversely affect the Company's
financial condition and results of operations, including funds from operations.
Employees. As of December 31, 1998, the Company had twenty-five employees.
Industry Segments. The Company operates in one industry segment,
investment in net leased real property.
ITEM 2. PROPERTIES
Real Estate Portfolio
As of December 31, 1998, the Company's real estate portfolio was comprised
of approximately 10.9 million square feet of rentable space in 66 office,
industrial and retail properties. The Company's Properties are currently 98.5%
leased. The number, and percentage of annualized revenues and square footage mix
of the Company's portfolio is as follows:
<TABLE>
<CAPTION>
SQUARE
NUMBER REVENUE FOOTAGE
------ ------- -------
<S> <C> <C> <C>
Office................................................... 17 48% 27%
Industrial............................................... 25 34% 56%
Retail................................................... 24 18% 17%
-- --- ---
66 100% 100%
== === ===
</TABLE>
The Company's Properties are subject to triple net leases, however, in
certain leases the Company is responsible for roof and structural repairs. In
such situations the Company performs annual inspections of the Properties.
During each of the years in three year period ended December 31, 1998, the
Company expended less than $250,000 relating to such leases. The Company's
Property in Palm Beach Gardens, Florida is subject to a lease in which the
Company is responsible for a portion of the real estate taxes and utilities.
The Company's tenants represent a variety of industries including banking,
computer and software services, health and fitness, general purpose retailing,
manufacturing, insurance and warehousing, and have a weighted average credit
strength of investment grade quality.
A substantial portion of the Company's income consists of base rent under
long-term leases. As of December 31, 1998, the average remaining term under the
Company's leases is approximately 9.5 years. Of the 65 current leases as of
December 31, 1998, 35 contain scheduled rent increases and 8 contain increases
based upon the Consumer Price Index. In addition four leases contain percentage
rent clauses.
The Company has 12 Properties accounting for $16.1 million of annualized
rental revenue that are subject to long term ground leases where a third party
owns and has leased the underlying land to the Company. In each of these
situations the rental payments made to the land owner are passed on to the
Company's tenant. At the end of these long-term ground leases, unless extended,
the land together with all improvements thereon revert to the land owner. These
ground leases, including renewal options, expire at various dates through 2074.
The Company has 17 Properties that are subject to lessee purchase options.
As of December 31, 1998, only one purchase option can be exercised. In each case
the Property can be purchased for no less than its current fair market value.
TABLE REGARDING REAL ESTATE HOLDINGS
The table on the following pages sets forth certain information relating to
the Company's real property portfolio as of December 31, 1998.
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<TABLE>
<CAPTION>
PROPERTY NET
TENANT TYPE/YEAR LAND AREA RENTABLE
PROPERTY LOCATION (GUARANTOR) CONSTRUCTED (ACRES) SQUARE FEET
----------------- ----------------------------- ------------------- --------- -----------
<S> <C> <C> <C> <C>
904 Industrial Road Walker Manufacturing Company Industrial 20.00 195,640
Marshall, MI (Tenneco Automotive, Inc.) 1968 & 1972
1601 Pratt Avenue Walker Manufacturing Company Industrial 8.26 53,600
Marshall, MI (Tenneco Automotive, Inc.) 1979
19019 No. 59th Avenue Honeywell, Inc. Research/ 51.79 252,300
Glendale, AZ Development
1985
6950 Greenwood Parkway Allegiance Healthcare Industrial 10.15 123,924
Bessemer, AL Corp.(1) 1990
(Baxter International, Inc.)
567 South Riverside Drive Crown Cork & Seal Co., Inc. Warehouse/ 5.80 146,000
Modesto, CA Manufacturing
1970 & 1976
Tappan Park White Consolidated Warehouse/ 26.57 296,720
22 Chambers Road Industries, Distribution
Mansfield, OH Inc.(3) 1970
10419 North 30th Street Time Customer Service, Inc. Office 14.38 132,981
Tampa, FL (Time, Inc.) 1986
3102 Queen Palm Drive Time Customer Service, Inc. Office/Warehouse 15.02 229,605
Tampa, FL (Time, Inc.) 1986
109 Stevens Street Unisource Worldwide, Inc. Warehouse/ 6.97 168,800
Jacksonville, FL Industrial
1958 & 1969
4450 California Street Mervyn's Retail 11.00 122,000
Bakersfield, CA (Dayton Hudson Corp.) 1976
3615 North 27th Avenue Bank One, Arizona, N.A.(2) Office 10.26 179,280
Phoenix, AZ 1960 & 1979
Amigoland Shopping Montgomery Ward & Co., Inc. Retail 7.61 115,000
Center (1) 1973
Mexico St. & Palm Blvd.
Brownsville, TX
13430 N. Black Canyon Bull HN Information Systems, Office 13.37 137,058
Fwy. Inc. 1985 & 1994
Phoenix, AZ
<CAPTION>
1999 1999(E)
BASE LEASE TERM AND MINIMUM STRAIGHT-LINE
ANNUAL RENTS PER NET RENEWAL CASH RENTAL
PROPERTY LOCATION RENTABLE SQUARE FOOT OPTIONS RENT ($000) REVENUE ($000)
----------------- ----------------------------------- ------------- ----------- --------------
<S> <C> <C> <C> <C>
904 Industrial Road 08/18/87 - 08/17/00 None $ 487 $ 487
Marshall, MI 08/18/97 - 08/17/00: $2.49
1601 Pratt Avenue 08/18/87 - 08/17/00 None $ 167 $ 167
Marshall, MI 08/18/97 - 08/17/00: $3.11
19019 No. 59th Avenue 07/16/86 - 07/15/01 (3) 5 year $ 1,892 $ 1,892
Glendale, AZ 07/16/96 - 07/15/01: $7.50
6950 Greenwood Parkway 09/01/91 - 09/01/01 (2) 5 year $ 472 $ 472
Bessemer, AL 09/01/91 - 09/01/01: $3.81
567 South Riverside Drive 09/26/86 - 09/25/01 (1) 5 year $ 298 $ 298
Modesto, CA 09/26/96 - 09/25/01: $2.04
Tappan Park 12/31/86 - 12/31/01 (2) 5 year $ 593 $ 593
22 Chambers Road 01/01/97 - 12/31/01: $2.00
Mansfield, OH
10419 North 30th Street 04/01/87 - 03/31/02 (4) 5 Year $ 1,238 $ 1,099
Tampa, FL 01/01/99 - 12/31/99: $9.31
01/01/00 - 12/31/00: $9.87
01/01/01 - 12/31/01: 10.46
01/01/02 - 03/31/02: 11.09
3102 Queen Palm Drive 08/01/87 - 07/31/02 (1) 5 year $ 955 $ 957
Tampa, FL 08/01/98 - 07/31/01: $4.16
08/01/01 - 07/31/02: $4.39
109 Stevens Street 10/01/87 - 09/30/02 None $ 380 $ 380
Jacksonville, FL 10/01/97 - 09/30/02: $2.25
4450 California Street 02/23/77 - 12/31/02 (5) 5 year $ 407 $ 397
Bakersfield, CA 01/01/78 - 12/31/02: $3.34
3615 North 27th Avenue 11/30/88 - 11/30/03 (1) 5 year $ 1,900 $ 1,900
Phoenix, AZ 12/01/98 - 11/30/03: 10.60
Amigoland Shopping 11/01/74 - 10/31/04 (3) 5 year $ 153 $ 153
Center 11/01/74 - 10/31/04: $1.33
Mexico St. & Palm Blvd.
Brownsville, TX
13430 N. Black Canyon 10/11/94 - 10/10/05 None $ 972 $ 1,032
Fwy. 10/11/94 - 10/10/00: $7.35
Phoenix, AZ 10/11/00 - 10/10/01: $7.70
10/11/01 - 10/10/02: $7.90
10/11/02 - 10/10/03: $8.10
10/11/03 - 10/10/04: $8.30
10/11/04 - 10/10/05: $8.50
</TABLE>
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<PAGE> 8
<TABLE>
<CAPTION>
PROPERTY NET
TENANT TYPE/YEAR LAND AREA RENTABLE
PROPERTY LOCATION (GUARANTOR) CONSTRUCTED (ACRES) SQUARE FEET
----------------- ----------------------------- ------------------- --------- -----------
<S> <C> <C> <C> <C>
1301 California Circle Stevens-Arnold, Inc. Office/Research 6.34 100,026
Milpitas, CA (BICC Public Ltd. Co.) & Development
1985
200 Southington Hartford Fire Insurance Co. Office 12.40 153,364
Executive Park 1983
Southington, CT
24100 Laguna Hills Mall Federated Department Stores, Retail 11.00 160,000
Laguna Hills, CA Inc.(1) 1974
7111 Westlake Terrace Hechinger & Company(1) Retail 7.61 95,000
Bethesda, MD 1980
6910 S. Memorial Highway Toys "R" Us, Inc.(1) Retail 4.44 43,123
Tulsa, OK 1981
12535 SE 82nd Avenue Toys "R" Us, Inc.(1) Retail 5.85 42,842
Clackamas, OR 1981
18601 Alderwood Mall Blvd. Toys "R" Us, Inc.(1) Retail 3.64 43,105
Lynnwood, WA 1981
4425 Purks Road Lear Technologies, LLC Industrial 12.00 183,717
Auburn Hills, MI (Lear Corporation) 1989 & 1998
(General Motors Corp.)
West Wingfoot Road Toys "R" Us, Inc.(1) Industrial 7.56 123,293
Houston, TX 1981
245 Salem Church Road Exel Logistics Inc. Warehouse 12.52 252,000
Mechanicsburg, PA (NFC plc) 1985
6 Doughton Road Exel Logistics Inc. Warehouse 24.38 330,000
New Kingston, PA (NFC plc) 1998
34 East Main Street Exel Logistics Inc. Warehouse 9.66 179,200
New Kingston, PA (NFC plc) 1981
401 Elm Street Lockheed Martin Corp Office/Research 36.94 126,000
Marlborough, MA (Honeywell, Inc.) & Development
1960 & 1988
<CAPTION>
1999 1999(E)
BASE LEASE TERM AND MINIMUM STRAIGHT-LINE
ANNUAL RENTS PER NET RENEWAL CASH RENTAL
PROPERTY LOCATION RENTABLE SQUARE FOOT OPTIONS RENT ($000) REVENUE ($000)
----------------- ----------------------------------- ------------- ----------- --------------
<S> <C> <C> <C> <C>
1301 California Circle 12/10/85 - 12/10/05 (9) 5 year $ 2,377 $ 2,667
Milpitas, CA 06/01/98 - 11/30/00: $23.76
12/01/00 - 05/31/03: $26.88
06/01/03 - 12/10/05: $30.36
200 Southington 09/01/91 - 12/31/05 (1) 5 year $ 2,166 $ 2,009
Executive Park 01/01/95 - 12/31/05: $14.12
Southington, CT
24100 Laguna Hills Mall 02/01/76 - 01/31/06 (1) 8 year $ 677 $ 673
Laguna Hills, CA 02/01/80 - 01/31/06: $4.23 (2) 15 year
(1) 6 year
7111 Westlake Terrace 05/01/81 - 04/30/06 (1) 10 year $ 772 $ 648
Bethesda, MD 05/01/96 - 04/30/06: $8.13 (3) 5 year
6910 S. Memorial Highway 06/01/81 - 05/31/06 (5) 5 year $ 356 $ 356
Tulsa, OK 02/01/98 - 05/31/01: $8.26
06/01/01 - 05/31/06: $8.40
12535 SE 82nd Avenue 06/01/81 - 05/31/06 (5) 5 year $ 417 $ 417
Clackamas, OR 02/01/98 - 05/31/01: $9.74
06/01/01 - 05/31/06: $9.91
18601 Alderwood Mall Blvd. 06/01/81 - 05/31/06 (5) 5 year $ 389 $ 389
Lynnwood, WA 02/01/98 - 05/31/01: $9.03
06/01/01 - 05/31/06: $9.18
4425 Purks Road 07/23/98 - 07/22/06 none $ 1,325 $ 1,365
Auburn Hills, MI 07/23/98 - 07/22/02: $7.21
07/23/02 - 07/22/06: $7.63
West Wingfoot Road 09/01/81 - 08/31/06 (5) 5 year $ 491 $ 478
Houston, TX 05/01/98 - 08/31/06: $3.98
245 Salem Church Road 11/15/91 - 11/30/06 (2) 5 year $ 924 $ 1,000
Mechanicsburg, PA 12/01/97 - 11/30/00: $3.67
12/01/00 - 11/30/03: $4.01
12/01/03 - 11/30/06: $4.38
6 Doughton Road 11/15/91 - 11/30/06 (2) 5 year $ 1,245 $ 1,349
New Kingston, PA 12/01/97 - 11/30/00: $3.77
12/01/00 - 11/30/03: $4.12
12/01/03 - 11/30/06: $4.51
34 East Main Street 11/15/91 - 11/30/06 (2) 5 year $ 603 $ 654
New Kingston, PA 12/01/97 - 11/30/00: $3.37
12/01/00 - 11/30/03: $3.68
12/01/03 - 11/30/06: $4.02
401 Elm Street 07/22/97 - 12/17/06 (6) 5 year $ 1,671 $ 1,671
Marlborough, MA 07/22/97 - 12/17/01: $13.26
12/18/01 - 12/17/06:
75% of cumulative
increase in CPI
</TABLE>
7
<PAGE> 9
<TABLE>
<CAPTION>
PROPERTY NET
TENANT TYPE/YEAR LAND AREA RENTABLE
PROPERTY LOCATION (GUARANTOR) CONSTRUCTED (ACRES) SQUARE FEET
----------------- ----------------------------- ------------------- --------- -----------
<S> <C> <C> <C> <C>
46600 Port Street Johnson Controls, Inc. Industrial 24.00 134,160
Plymouth, MI 1996
450 Stern Street Johnson Controls, Inc. Industrial 20.10 111,160
Oberlin, OH 1996
15911 Progress Drive Johnson Controls, Inc. Industrial 22.20 58,800
Cottondale, AL 1996
12000 Tech Center Drive Kelsey-Hayes (Tech I) Office 5.72 80,230
Livonia, MI 1987 & 1988
12025 Tech Center Drive Kelsey-Hayes (Tech II) Research/ 9.18 100,000
Livonia, MI Development
1987 & 1988
2300 Litton Lane Fidelity Corporate Office 24.00 81,744
Hebron, KY Real Estate, LLC (4) 1987
5917 S. La Grange Road Bally Total Fitness Corp. Retail/Health Club 2.73 25,250
Countryside, IL 1987
1160 White Horse Road Physical Fitness Centers of Retail/Health Club 2.87 31,750
Voorhees, NJ Philadelphia, Inc. 1987
(Bally Total Fitness Corp.)
5801 Bridge Street Champion Fitness IV, Inc. Retail/Health Club 3.66 24,990
DeWitt, NY (Bally Total Fitness Corp.) 1977 & 1987
One Spricer Drive Dana Corp. Industrial 20.95 148,000
Gordonsville, TN 1983 & 1985
<CAPTION>
1999 1999(E)
BASE LEASE TERM AND MINIMUM STRAIGHT-LINE
ANNUAL RENTS PER NET RENEWAL CASH RENTAL
PROPERTY LOCATION RENTABLE SQUARE FOOT OPTIONS RENT ($000) REVENUE ($000)
----------------- ----------------------------------- ------------- ----------- --------------
<S> <C> <C> <C> <C>
46600 Port Street 12/23/96 - 12/22/06 (2) 5 year $ 709 $ 709
Plymouth, MI 12/23/98 - 12/22/99: $5.28
12/23/99 - 12/22/06:
Annual increase of 3x CPI,
but not more than 4.5%
450 Stern Street 12/23/96 - 12/22/06 (2) 5 year $ 536 $ 536
Oberlin, OH 12/23/98 - 12/22/99: $4.82
12/23/99 - 12/22/06:
Annual increase of 3x CPI,
but not more than 4.5%
15911 Progress Drive 02/19/97 - 02/18/07 (2) 5 year $ 313 $ 313
Cottondale, AL 02/19/98 - 02/18/99: $5.13
02/19/99 - 02/18/00: $5.32
02/19/00 - 02/18/07:
Annual increase of 3x CPI,
but not more than 4.5%
12000 Tech Center Drive 05/01/97 - 04/30/07 (2) 5 year $ 629 $ 679
Livonia, MI 05/01/97 - 04/30/99: $7.70
05/01/99 - 04/30/02: $7.91
05/01/02 - 04/30/05: $8.75
05/01/05 - 04/30/07: $9.25
12025 Tech Center Drive 05/01/97 - 04/30/07 (2) 5 year $ 912 $ 958
Livonia, MI 05/01/97 - 04/30/99: $9.05
05/01/99 - 04/30/02: $9.16
05/01/02 - 04/30/05: $9.75
05/01/05 - 04/30/07: $10.25
2300 Litton Lane 05/01/97 - 04/30/07 (2) 5 year $ 777 $ 817
Hebron, KY 05/01/97 - 04/30/02:
$9.50 05/01/02-04/30/07: $11.00
5917 S. La Grange Road 07/13/87 - 07/12/07 (2) 5 year $ 574 $ 542
Countryside, IL 07/13/97 - 07/12/02: $22.73
07/13/02 - 07/12/07: $26.14
1160 White Horse Road 07/14/87 - 07/13/07 (2) 5 year $ 713 $ 673
Voorhees, NJ 07/14/97 - 07/13/02: $22.45
07/14/02 - 07/13/07: $25.82
5801 Bridge Street 08/19/87 - 08/18/07 (2) 5 year $ 444 $ 419
DeWitt, NY 08/19/97 - 08/18/02: $17.78
08/19/02 - 08/18/07: $20.45
One Spricer Drive 01/01/84 - 08/31/07 (2) 5 year $ 329 $ 341
Gordonsville, TN 08/01/96 - 07/31/99: $2.20 (1) 4 year,
08/01/99 - 07/31/02: $2.26 11 months
08/01/02 - 07/31/05: $2.33
08/01/05 - 08/31/07: $2.40
</TABLE>
8
<PAGE> 10
<TABLE>
<CAPTION>
PROPERTY NET
TENANT TYPE/YEAR LAND AREA RENTABLE
PROPERTY LOCATION (GUARANTOR) CONSTRUCTED (ACRES) SQUARE FEET
----------------- ----------------------------- ------------------- --------- -----------
<S> <C> <C> <C> <C>
541 Perkins Jones Road Kmart Corp. Warehouse/ 103.00 1,700,000
Warren, OH Distribution
1982
160 Clairemont Avenue Allied Holdings, Inc. Office 2.98 112,248
Decatur, GA 1983
2655 Shasta Way Fred Meyer, Inc. Retail 13.90 178,204
Klamath Falls, OR 1986
2210 Enterprise Drive Fleet Mortgage Group, Inc. Office 16.53 177,747
Florence, SC 1998
7272 55th Street Circuit City Stores, Inc. Retail 3.93 45,308
Sacramento, CA 1988
6405 South Virginia St. Comp USA, Inc. Retail 2.72 31,400
Reno, NV 1988
5055 West Sahara Avenue Circuit City Stores, Inc. Retail 2.57 36,053
Las Vegas, NV 1988
4733 Hills & Dales Road Scandinavian Health Spa, Inc. Retail/Health Club 3.32 37,214
Canton, OH (Bally Total Fitness 1987
Holding Corp.)
Highway 21 South Wal-Mart Real Estate Retail 5.21 56,132
Jacksonville, AL Business Trust 1982
(Wal-Mart Stores, Inc.)
6475 Dobbin Road Upton's, Inc. Retail 2.50 60,000
Columbia, MD 1983
295 Chipeta Way Northwest Pipeline Corp.(1) Office 19.79 295,000
Salt Lake City, UT 1982
Fort Street Mall Liberty House, Inc.(1) Retail 1.22 85,610
King St. 1980
Honolulu, HI
<CAPTION>
1999 1999(E)
BASE LEASE TERM AND MINIMUM STRAIGHT-LINE
ANNUAL RENTS PER NET RENEWAL CASH RENTAL
PROPERTY LOCATION RENTABLE SQUARE FOOT OPTIONS RENT ($000) REVENUE ($000)
----------------- ----------------------------------- ------------- ----------- --------------
<S> <C> <C> <C> <C>
541 Perkins Jones Road 10/01/82 - 09/30/07 (10) 5 year $ 8,409 $ 8,932
Warren, OH 10/01/98 - 09/30/02: $4.95
10/01/02 - 09/30/07: $5.51
160 Clairemont Avenue 01/01/98 - 12/31/07 (2) 5 year $ 1,388 $ 1,530
Decatur, GA 01/01/98 - 12/31/99: $12.36
01/01/00 - 12/31/07:
Rent increases
2.75% annually
2655 Shasta Way 03/10/88 - 03/31/08 (3) 10 year $ 1,009 $ 1,009
Klamath Falls, OR 03/10/88 - 03/31/08: $5.66
2210 Enterprise Drive 06/10/98 - 06/30/08 (2) 5 year $ 1,520 $ 1,635
Florence, SC 06/10/98 - 06/30/03: $8.55
07/01/03 - 06/30/08: $9.84
7272 55th Street 10/28/88 - 10/27/08 (3) 10 year $ 387 $ 376
Sacramento, CA 10/28/98 - 10/27/03: $8.54
10/28/03 - 10/27/08: $9.30
6405 South Virginia St. 12/16/88 - 12/15/08 (3) 10 year $ 335 $ 325
Reno, NV 12/16/98 - 12/15/03: $10.65
12/16/03 - 12/15/08: $11.60
5055 West Sahara Avenue 12/16/88 - 12/15/08 (3) 10 year $ 286 $ 278
Las Vegas, NV 12/16/98 - 12/15/03: $7.93
12/16/03 - 12/15/08: $8.64
4733 Hills & Dales Road 01/01/89 - 12/31/08 (2) 5 year $ 640 $ 685
Canton, OH 01/01/99 - 12/31/99: $17.20
01/01/00 - 12/31/08:
Rent increases 2.2% annually
Highway 21 South 08/31/83 - 01/31/09 (5) 5 year $ 146 $ 146
Jacksonville, AL 09/01/87 - 01/31/09: $2.60
plus 1% of gross sales
in excess of $10 million
($46,000 in 1998)
6475 Dobbin Road 08/01/83 - 07/30/09 (4) 5 year $ 570 $ 549
Columbia, MD 08/01/98 - 07/30/04: $9.50
08/01/04 - 07/30/09: $8.75
295 Chipeta Way 10/01/82 - 09/30/09 (1) 9 year $ 8,571 $ 8,571
Salt Lake City, UT 10/01/97 - 09/30/09: $29.06 (1) 10 year
subject to a CPI adjustment on a
portion of the rent.
Fort Street Mall 10/01/80 - 09/30/09 (1) 9 year, $ 963 $ 971
King St. 10/01/95 - 09/30/05: $11.25 7 months
Honolulu, HI 10/01/05 - 09/30/09: $11.56 (1) 2 year
(3) 5 year
</TABLE>
9
<PAGE> 11
<TABLE>
<CAPTION>
PROPERTY NET
TENANT TYPE/YEAR LAND AREA RENTABLE
PROPERTY LOCATION (GUARANTOR) CONSTRUCTED (ACRES) SQUARE FEET
----------------- ----------------------------- ------------------- --------- -----------
<S> <C> <C> <C> <C>
16275 Technology Drive Cymer, Inc. Office/Research 2.73 65,755
San Diego, CA & Development 1989
9950 Mayland Drive Circuit City Stores, Inc.(1) Office Headquarters 19.71 288,562
Richmond, VA 1990
7055 Highway 85 South Wal-Mart Stores, Inc. Retail 8.61 81,911
Riverdale, GA 1985
4200 RCA Boulevard The Wackenhut Corp. Office 7.70 127,855
Palm Beach Gardens, FL 1996
Highway 101 Fred Meyer, Inc. Retail 8.81 118,179
Newport, OR 1986
6345 Brackbill Boulevard Exel Logistics, Inc. Warehouse/ 29.01 507,000
Mechanicsburg, PA (NFC plc) Distribution
1985 & 1991
2280 Northeast Drive Ryder Integrated Logistics, Warehouse 25.70 276,480
Waterloo, IA Inc. 1996 & 1997
(Ryder Systems, Inc.)
128 Crews Drive Stone Container Corp. Industrial/ 10.76 185,960
Columbia, SC Warehouse
1968 & 1998
1600 Viceroy Drive FirstPlus Financial Group, Office 8.17 247,968
Dallas, TX Inc. 1986
250 Rittenhouse Circle Jones Apparel Group, Inc.(5) Office/ 15.63 255,019
Bristol, PA Warehouse
1982
<CAPTION>
1999 1999(E)
BASE LEASE TERM AND MINIMUM STRAIGHT-LINE
ANNUAL RENTS PER NET RENEWAL CASH RENTAL
PROPERTY LOCATION RENTABLE SQUARE FOOT OPTIONS RENT ($000) REVENUE ($000)
----------------- ----------------------------------- ------------- ----------- --------------
<S> <C> <C> <C> <C>
16275 Technology Drive 06/01/96 - 12/31/09 None $ 762 $ 860
San Diego, CA 06/01/97 - 05/31/99: $11.26
06/01/99 - 05/31/01: $11.82
06/01/01 - 05/31/03: $12.42
06/01/03 - 05/31/05: $13.04
06/01/05 - 05/31/07: $13.69
06/01/07 - 12/31/09: $14.26
9950 Mayland Drive 02/28/90 - 02/28/10 (4) 10 year $ 2,478 $ 2,791
Richmond, VA 01/01/98 - 02/29/00: $8.59 (1) 5 year
03/01/00 - 02/28/10: $9.91
7055 Highway 85 South 12/04/85 - 01/31/11 (5) 5 year $ 270 $ 270
Riverdale, GA 12/04/85 - 01/31/11: $3.29
4200 RCA Boulevard 02/15/96 - 02/28/11 (3) 5 year $ 2,241 $ 2,241
Palm Beach Gardens, FL 12/01/97 - 02/28/11: $17.53
Highway 101 06/01/86 - 05/31/11 (3) 5 year $ 826 $ 826
Newport, OR 06/01/86 - 05/31/11: $6.99
plus .5% of gross sales
over $20 million
($66,000 in 1998)
6345 Brackbill Boulevard 10/29/90 - 03/19/12 (2) 10 year $ 1,771 $ 1,933
Mechanicsburg, PA 3/20/97 - 03/19/02: $3.49
3/20/02 - 03/19/07: $4.02
3/20/07 - 03/19/12:
greater of $4.62 or fair
market rent as specified
in lease
2280 Northeast Drive 08/01/97 - 07/31/12 (3) 5 year $ 891 $ 1,004
Waterloo, IA 08/01/97 - 07/31/02: $3.22
08/01/02 - 07/31/07: $3.61
08/01/07 - 07/31/12: $4.04
128 Crews Drive 12/16/82 - 08/31/12 None $ 465 $ 549
Columbia, SC 09/01/98 - 08/31/00: $2.50
09/01/00 - 08/31/03: $2.71
09/01/03 - 08/31/06: $2.91
09/01/06 - 08/31/08: $3.12
09/01/08 - 08/31/12: $3.32
1600 Viceroy Drive 09/04/97 - 08/31/12 (4) 5 year $ 3,224 $ 3,557
Dallas, TX 09/04/97 - 08/31/02: $13.00
09/01/02 - 08/31/07: $14.30
09/01/07 - 08/31/12: $15.73
250 Rittenhouse Circle 03/26/98 - 03/25/13 (2) 5 year $ 1,150 $ 1,224
Bristol, PA 03/26/98 - 03/26/03: $4.51
03/27/03 - 03/26/08: $4.96
03/27/08 - 03/25/13: $5.46
</TABLE>
10
<PAGE> 12
<TABLE>
<CAPTION>
PROPERTY NET
TENANT TYPE/YEAR LAND AREA RENTABLE
PROPERTY LOCATION (GUARANTOR) CONSTRUCTED (ACRES) SQUARE FEET
----------------- ----------------------------- ------------------- --------- -----------
<S> <C> <C> <C> <C>
3501 West Avenue H Michaels Stores, Inc. Warehouse/ 37.18 431,250
Lancaster, CA Distribution
1998
7150 Exchequer Drive Corporate Express Office Warehouse/ 5.23 65,043
Baton Rouge, LA Products, Inc. Distribution
(CEX Holdings, Inc.) 1998
9580 Livingston Road GFS Realty, Inc. Retail 10.60 107,337
Oxon Hill, MD (Giant Food, Inc.) 1976
324 Industrial Park Road SKF USA, Inc. Manufacturing 21.13 72,868
Franklin, NC 1996
Rockshire Village Center GFS Realty, Inc.(1) Retail 7.32 51,682
West Ritchie Parkway (Giant Food, Inc.) 1977
Rockville, MD
35205 16th Avenue South Eagle Hardware & Garden Inc. Retail 8.19 133,861
Federal Way, WA 1992
333 East Tudor Road Eagle Hardware & Garden Inc. Retail 11.00 157,525
Anchorage, AK 1992
<CAPTION>
1999 1999(E)
BASE LEASE TERM AND MINIMUM STRAIGHT-LINE
ANNUAL RENTS PER NET RENEWAL CASH RENTAL
PROPERTY LOCATION RENTABLE SQUARE FOOT OPTIONS RENT ($000) REVENUE ($000)
----------------- ----------------------------------- ------------- ----------- --------------
<S> <C> <C> <C> <C>
3501 West Avenue H 06/19/98 - 06/18/13 (3) 5 year $ 1,398 $ 1,430
Lancaster, CA 06/19/98 - 06/18/03: $3.24
06/19/03 - 06/18/08: $3.31
06/19/08 - 06/18/13: $3.39
7150 Exchequer Drive 11/01/98 - 10/31/13 (3) 5 year $ 327 $ 368
Baton Rouge, LA 11/01/98 - 10/31/01: $5.02
11/01/01 - 10/31/04: $5.32
11/01/04 - 10/31/07: $5.64
11/01/07 - 10/31/10: $5.98
11/01/10 - 10/31/13: $6.34
9580 Livingston Road 01/03/77 - 02/28/14 (4) 5 year $ 408 $ 274
Oxon Hill, MD 03/01/77 - 02/29/04: $3.80
03/01/04 - 02/28/14: $1.91
324 Industrial Park Road 12/23/96 - 12/31/14 (3) 10 year $ 322 $ 322
Franklin, NC 12/23/96 - 12/31/99: $4.42
01/01/00 - 12/31/14: CPI
every 3 years
Rockshire Village Center 01/01/78 - 04/30/17 (2) 10 year $ 224 $ 152
West Ritchie Parkway 01/01/78 - 02/28/05: $4.33
Rockville, MD 03/01/05 - 04/30/17: $2.23
35205 16th Avenue South 09/01/92 -08/31/17 None $ 1,233 $ 1,233
Federal Way, WA 09/01/97 - 08/31/02: $9.21
09/01/02 - 08/31/17:
CPI adjusted every 5 years
not to exceed 15%; plus
2% of annual sales in
excess of $38.5 million
($0 in 1998)
333 East Tudor Road 11/01/92 - 10/31/17 None $ 1,588 $ 1,588
Anchorage, AK 11/01/97 - 10/31/02: $10.08
11/01/02 - 10/31/17:
CPI adjusted every 5 years
not to exceed 15%; plus
2% of annual sales in
excess of $50 million
($53,000 in 1998)
</TABLE>
11
<PAGE> 13
<TABLE>
<CAPTION>
PROPERTY NET
TENANT TYPE/YEAR LAND AREA RENTABLE
PROPERTY LOCATION (GUARANTOR) CONSTRUCTED (ACRES) SQUARE FEET
----------------- ----------------------------- ------------------- --------- -----------
<S> <C> <C> <C> <C>
3350 Miac Cove Road Vacant Office/Industrial 10.92 141,359
Memphis, TN 1987
------ ----------
917.00 10,911,192
====== ==========
<CAPTION>
1999 1999(E)
BASE LEASE TERM AND MINIMUM STRAIGHT-LINE
ANNUAL RENTS PER NET RENEWAL CASH RENTAL
PROPERTY LOCATION RENTABLE SQUARE FOOT OPTIONS RENT ($000) REVENUE ($000)
----------------- ----------------------------------- ------------- ----------- --------------
<S> <C> <C> <C> <C>
3350 Miac Cove Road N/A N/A N/A N/A
Memphis, TN
------- -------
$73,065 $75,119
======= =======
</TABLE>
- ---------------
(E) Estimated
(1) The Company holds leasehold interest in the land. The leases, including
renewal options, expire at various dates through 2074.
(2) Tenant can cancel lease on November 30, 2000 with 12 months notice and a
payment of $2.9 million.
(3) Tenant can cancel lease anytime after March 1, 1999 with 12 months notice
and a payment of four months rent.
(4) Tenant can cancel lease on April 30, 2004 with 270 days notice and a payment
of $899,184.
(5) Tenant can cancel lease on March 26, 2008 with 12 months notice and a
payment of $1,391,500.
12
<PAGE> 14
ITEM 3. LEGAL PROCEEDINGS
The Company is not presently involved in any litigation nor to its
knowledge is any litigation threatened against the Company or its subsidiaries
that, in management's opinion, would result in any material adverse effect on
the Company's ownership, management or operation of its Properties.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 4A. EXECUTIVE OFFICERS AND TRUSTEES OF THE REGISTRANT
The following sets forth certain information relating to the executive
officers and Trustees of the Company:
<TABLE>
<CAPTION>
NAME BUSINESS EXPERIENCE
---- -------------------
<S> <C>
E. ROBERT ROSKIND.............. Mr. Roskind has served as the Chairman of the Board of
Age 54 Trustees and Co-Chief Executive Officer of the Company since
October 1993. He founded The LCP Group, L.P. in 1973 and has
been its Chairman since 1976. LCP has acted as general
partner in limited partnerships in which the Company has had
prior dealings. Prior to founding LCP, Mr. Roskind headed
the net-leasing financing area of Lehman Brothers Inc. He is
also a general partner for a variety of entities which serve
as the general partner of various partnerships that hold net
leased real properties or interests therein. Mr. Roskind is
a director of Berkshire Realty Company, Inc., Krupp
Government Income Trust I and Krupp Government Income Trust
II. Mr. Roskind received his B.S. in 1966 from the
University of Pennsylvania and is a 1969 Harlan Fiske Stone
Graduate of the Columbia Law School. He has been a member of
the Bar of the State of New York since 1970.
RICHARD J. ROUSE............... Mr. Rouse has served as Co-Chief Executive Officer and a
Age 53 trustee of the Company since October 1993. He served as the
President of the Company from October 1993 to April 1996,
and since April 1996 has served as the Vice Chairman. Mr.
Rouse was also a managing director of LCP. He had been
associated with LCP since 1979 and had been engaged there in
all aspects of net lease finance, acquisition and
syndication and corporate financing transactions. Mr. Rouse
graduated from Michigan State University in 1968 and
received his M.B.A. in 1970 from the Wharton School of
Finance and Commerce of the University of Pennsylvania.
T. WILSON EGLIN................ Mr. Eglin has served as Chief Operating Officer of the
Age 34 Company since October 1993 and a trustee since May 1994. He
served as Executive Vice President from October 1993 to
April 1, 1996, and since April 1996 has served as the
President. Prior to his current position with the Company,
Mr. Eglin had been associated with LCP from 1987 to 1993 and
had been its Vice President -- Acquisitions from 1990 to
1993. In connection with his responsibilities with LCP, Mr.
Eglin was an officer of affiliated companies that owned and
managed over 400 net leased real estate properties and was
involved in all aspects of real estate acquisition and
finance, principally in net leased transactions. Mr. Eglin
received his B.A. from Connecticut College in 1986.
</TABLE>
13
<PAGE> 15
<TABLE>
<CAPTION>
NAME BUSINESS EXPERIENCE
---- -------------------
<S> <C>
PATRICK CARROLL................ Mr. Carroll has served as the Chief Financial Officer of the
Age 35 Company since May 1998 and Treasurer effective January 1999.
Prior to joining the Company, Mr. Carroll was, from 1993 to
1998, a Senior Manager in the real estate unit of Coopers &
Lybrand L.L.P. serving both publicly and privately held real
estate entities with a focus on due diligence and public
equity/debt offerings. Mr. Carroll received his B.B.A. from
Hofstra University in 1986, a M.S. in Taxation from C.W.
Post in 1991 and is a Certified Public Accountant.
PAUL R. WOOD................... Mr. Wood has served as the Vice President, Chief Accounting
Age 38 Officer and Secretary of the Company since October 1993. He
had been associated with LCP from 1988 to 1993 and from 1990
to 1993 had been responsible for all accounting activities
relating to the net leased properties managed by LCP and its
affiliates. Prior to joining LCP, Mr. Wood was, from 1987 to
1988, associated with E. F. Hutton & Company Inc. as a
senior accountant. Mr. Wood received his B.B.A. from Adelphi
University in 1982 and has been a Certified Public
Accountant since 1985.
STEPHEN C. HAGEN............... Mr. Hagen has served as Senior Vice President of the Company
Age 56 since October 1996. Mr. Hagen had been associated with LCP
from 1995 to 1996. Prior to joining LCP, Mr. Hagen was a
principal of Pharus Realty Investments, a money manager
focused on real estate shares, and also served as Chief
Operating Officer of HRE Properties, a New York Stock
Exchange listed REIT. Mr. Hagen received his B.S. from the
University of Kansas in 1965 and his M.B.A. from the Wharton
School of Finance and Commerce in 1968.
JANET M. KAZ................... Ms. Kaz has served as Vice President of the Company since
Age 35 May 1995 and as Asset Manager since October 1993. Prior to
that, Ms. Kaz was a member of LCP's property acquisition
team from 1986 to 1990 and a member of LCP's asset
management team from 1991 to 1993. Ms. Kaz received her B.A.
from Muhlenberg College in 1985.
PHILIP L. KIANKA............... Mr. Kianka joined the Company in 1997 as Vice President of
Age 42 Asset Management. Prior to joining the Company, from 1985
through 1997, Mr. Kianka served as a Vice President and
Senior Asset Manager at Merrill Lynch Hubbard, Inc., a real
estate division of Merrill Lynch & Co., Inc. Mr. Kianka was
involved in real estate acquisitions, development and asset
management for a national portfolio of diversified
properties. Mr. Kianka received his B.A. from Clemson
University in 1978 and his M.A. from Clemson University in
1981.
CARL D. GLICKMAN............... Mr. Glickman has served as a trustee and the Chairman of the
Age 72 Executive Committee of the Board of Trustees of the Company
since May 1994 and as a member of the Compensation Committee
of the Board of Trustees until May 1998. He has been
President of the Glickman Organization since 1953. He is on
the Board of Directors of Alliance Tire & Rubber Co., Ltd.,
Bear Stearns Companies, Inc., Kuala Healthcare, Inc., Infu-
Tech, Inc., Jerusalem Economic Corporation Ltd. and
OfficeMax Inc., as well as numerous private companies.
</TABLE>
14
<PAGE> 16
<TABLE>
<CAPTION>
NAME BUSINESS EXPERIENCE
---- -------------------
<S> <C>
KEVIN W. LYNCH................. Mr. Lynch has served as a trustee of the Company since May
Age 46 1996 and is a founder and principal of the Townsend Group,
an institutional real estate consulting firm founded in
1983. Prior to forming the Townsend Group, Mr. Lynch was a
Vice President for Stonehenge Capital Corporation. Mr. Lynch
has been involved in the commercial real estate industry
since 1974, and is a director of First Industrial Realty
Trust.
JOHN D. MCGURK................. Mr. McGurk became a member of the Board in January 1997 as
Age 55 the designee of Five Arrows Realty Securities, L.L.C. ("Five
Arrows") to the Board of Trustees. He is the founder and
President of Rothschild Realty, Inc., the advisor to Five
Arrows. Prior to starting Rothschild Realty, Inc. in 1981,
Mr. McGurk served as a Regional Vice President for The
Prudential Insurance Company of America where he oversaw its
New York City real estate loan portfolio, equity holdings,
joint ventures and projects under development. Mr. McGurk is
a member of the Urban Land Institute, Pension Real Estate
Association, Real Estate Board of New York and the National
Real Estate Association, and is a member of the Trustee
Committee of the Caedmon School.
SETH M. ZACHARY................ Mr. Zachary has served as a trustee and a member of the
Age 46 Audit Committee and Compensation Committee of the Board of
Trustees of the Company since November 1993. Since 1987, he
has been a partner in the law firm of Paul, Hastings,
Janofsky & Walker LLP, counsel to the Company.
</TABLE>
PART II.
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER
MATTERS
The common shares of the Company are listed for trading on the New York
Stock Exchange ("NYSE") under the symbol "LXP." The following table sets forth
the high and low sales prices as reported by the NYSE for the common shares of
the Company for each of the periods indicated below:
<TABLE>
<CAPTION>
FOR THE QUARTERS ENDED: HIGH LOW CASH DIVIDEND
----------------------- -------- -------- -------------
<S> <C> <C> <C>
December 31, 1998................................ $13.2500 $11.0000 $0.30
September 30, 1998............................... 14.6250 10.8125 $0.30
June 30, 1998.................................... 15.2500 13.7500 $0.29
March 31, 1998................................... 16.3750 14.2500 $0.29
December 31, 1997................................ 16.8125 13.7500 $0.29
September 30, 1997............................... 15.7500 13.8125 $0.29
June 30, 1997.................................... 14.5000 12.1250 $0.29
March 31, 1997................................... 15.0000 12.1250 $0.29
</TABLE>
The closing price of the common shares of the Company was $11.75 on
February 26, 1999.
As of February 26, 1999, the Company had 2,326 common shareholders of
record.
Dividends. The Company has made quarterly distributions since October,
1986 without interruption. The Company paid a dividend of $.27 per share to
shareholders in respect of each of the calendar quarters of 1994, 1995 and the
first quarter of 1996; $.28 per share in respect of the second and third
quarters of 1996; and $.29 per share in respect of the fourth quarter of 1996,
each of the calendar quarters of 1997 and the first and second quarters of 1998;
and $.30 per share in respect of the third and fourth quarters of 1998. The
Company declared the dividend in respect of the fourth quarter of 1998, in the
amount of $.30 per share to shareholders
15
<PAGE> 17
of record as of February 1, 1999 which was paid on February 16, 1999. The
Company's annualized dividend rate is currently $1.20 per share.
Following is a summary of the average taxable nature of the Company's
dividends for the three years ended December 31:
<TABLE>
<CAPTION>
1998 1997 1996
------- ------- -------
<S> <C> <C> <C>
Total dividends per share............................. $ 1.17 $ 1.16 $ 1.10
======= ======= =======
Percent taxable as ordinary income.................. 88.06% 68.91% 95.46%
Percent taxable as long-term capital gain........... 2.30% -- --
Percent non-taxable as return of capital............ 9.64% 31.09% 4.54%
------- ------- -------
100.00% 100.00% 100.00%
======= ======= =======
</TABLE>
While the Company intends to continue paying regular quarterly dividends,
future dividend declarations will be at the discretion of the Board of Trustees
and will depend on the actual cash flow of the Company, its financial condition,
capital requirements, the annual distribution requirements under the REIT
provisions of the Code and such other factors as the Board of Trustees deems
relevant. The actual cash flow available to pay dividends will be affected by a
number of factors, including the revenues received from rental properties, the
operating expenses of the Company, the interest and principal payments required
under various borrowing agreements, the ability of lessees to meet their
obligations to the Company and any unanticipated capital expenditures.
In addition to its common and preferred share offerings, the Company has
capitalized the growth in its business through the issuance of secured and
unsecured fixed and floating-rate debt. Borrowings under the Company's revolving
credit facility have also been an interim source of funds to both finance the
purchase of properties and meet any short-term working capital requirements. The
various instruments governing the Company's issuance of its unsecured bank debt
impose certain restrictions on the Company with regard to dividends and
incurring additional debt obligation. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and Notes 5 and 6 of the Notes
to Consolidated Financial Statements included in this Annual Report on Form
10-K.
The Company does not believe that the financial covenants contained in its
unsecured revolving credit agreement and secured indebtedness will have any
adverse impact on the Company's ability to pay dividends in the normal course to
its common shareholders or to distribute amounts necessary to maintain its
qualifications as a REIT.
The Company maintains a dividend reinvestment program pursuant to which
common shareholders may elect to automatically reinvest their dividends to
purchase common shares of the Company at a 5% discount to the market price and
free of commissions and other charges. The Company may, from time to time,
either (i) repurchase common shares in the open market, or (ii) issue new common
shares, for the purpose of fulfilling its obligations under the dividend
reinvestment program.
ITEM 6. SELECTED FINANCIAL DATA
The following sets forth selected consolidated financial data for the
Company as of and for each of the years in the five-year period ended December
31, 1998. The selected consolidated financial data for the Company should be
read in conjunction with the Consolidated Financial Statements and the related
notes appearing elsewhere in this Annual Report on Form 10-K. (All amounts,
except per share data, in $000's.)
The Company believes that the book value of its real estate assets, which
reflects the historical costs of such real estate assets less accumulated
depreciation, is not indicative of the current market value of its Properties.
Historical operating results are not necessarily indicative of future operating
results.
16
<PAGE> 18
<TABLE>
<CAPTION>
1998 1997 1996 1995 1994
--------- --------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Total revenue............................. $ 65,117 $ 43,569 $ 31,675 $ 25,002 $ 26,038
Operating expenses, including minority
interest................................ (48,433) (35,304) (26,209) (19,983) (20,559)
Transactional expenses.................... (559) -- -- -- --
Gain (loss) on sale of properties......... (388) 3,517 -- 1,514 --
Proceeds from lease termination........... -- -- -- 1,600 --
Loss on extinguishment of debt............ -- (3,189) -- (4,849) --
--------- --------- -------- -------- --------
Net income................................ 15,737 8,593 5,466 3,284 5,479
========= ========= ======== ======== ========
Net income per common share -- basic...... 0.79 0.33 0.58 0.35 0.59
========= ========= ======== ======== ========
Net income per common share -- diluted.... 0.78 0.32 0.56 0.35 0.59
========= ========= ======== ======== ========
Cash dividends declared per common
share................................... 1.17 1.16 1.12 1.08 1.08
========= ========= ======== ======== ========
Net cash provided by operating
activities.............................. 32,008 23,823 14,975 7,216 12,423
========= ========= ======== ======== ========
Net cash (used in) provided by
investing activities.................... (111,080) (110,767) (16,955) 7,887 --
========= ========= ======== ======== ========
Net cash provided by (used in)
financing activities.................... 86,516 88,116 1,859 (15,610) (12,304)
========= ========= ======== ======== ========
Real estate assets, net................... 609,717 416,613 289,326 200,507 202,602
========= ========= ======== ======== ========
Total assets.............................. 647,007 468,373 310,384 221,216 216,019
========= ========= ======== ======== ========
Long-term obligations..................... 360,722 227,411 193,798 123,664 112,038
========= ========= ======== ======== ========
Funds from operations(1).................. 35,700 21,483 14,371 12,049 11,486
========= ========= ======== ======== ========
Rent received above (below) straight line
rent.................................... (2,411) (924) (105) 400 569
========= ========= ======== ======== ========
</TABLE>
- ---------------
(1) The Company believes that Funds From Operations ("FFO") enhances an
investor's understanding of the Company's financial condition, results of
operations and cash flows. The Company believes that Funds From Operations
is an appropriate measure of the performance of an equity REIT, and that it
can be one measure of a REIT's ability to make cash distributions. Funds
From Operations is defined by the National Association of Real Estate
Investment Trusts, Inc. ("NAREIT") as "net income (or loss) (computed in
accordance with generally accepted accounting principles ("GAAP")),
excluding gains (or losses) from debt restructuring and sales of property,
plus real estate depreciation and amortization and after adjustments for
unconsolidated partnerships and joint ventures." The Company's method of
calculating Funds From Operations excludes other non-recurring revenue and
expense items and may be different from methods used by other REITs and
accordingly, is not comparable to such other REITs. Funds From Operations
should not be considered an alternative to net income as an indicator of
operating performance or to cash flows from operating activities as
determined in accordance with GAAP, or as a measure of liquidity to other
consolidated income or cash flow statement data as determined in accordance
with GAAP.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
GENERAL
The Company, which has elected to qualify as a real estate investment trust
under the Internal Revenue Code of 1986, acquires and manages net-leased
commercial properties. The Company has operated as a REIT since October 1993
when it initially issued 9.3 million common shares, approximately 169,000
special limited partnership units (which are exchangeable for an equivalent
number common shares) and approximately $1.9 million in 7.75% subordinated notes
due in 2000.
17
<PAGE> 19
As of December 31, 1998, the Company owned 66 real estate properties.
During 1998, the Company purchased fourteen properties for $208.8 million.
LIQUIDITY AND CAPITAL RESOURCES
Since becoming a public company, the Company's principal source of capital
for growth has been the public and private equity markets, selective secured
indebtedness, its unsecured credit facility and issuance of OP Units.
The Company's current $100 million unsecured credit facility, which is
scheduled to expire in July 2001, has made available funds to finance
acquisitions and meet any short-term working capital requirements. As of
December 31, 1998, $52.6 million was outstanding under this credit facility with
a weighted average interest rate of 6.68%.
Since its formation in 1993, the Company has raised, through the issuance
of common shares, preferred shares and OP Units, aggregate capital of
approximately $126.3 million for the purposes of retiring indebtedness and
acquiring properties. In addition, the Company has purchased $77.6 million in
real estate through the direct issuance of its common shares and OP Units.
Dividends. In connection with its intention to continue to qualify as a
REIT for Federal income tax purposes, the Company expects to continue paying
regular dividends to its shareholders. These dividends are expected to be paid
from operating cash flows which are expected to increase due to property
acquisitions and growth in rental revenues in the existing portfolio and from
other sources. Since cash used to pay dividends reduces amounts available for
capital investments, the Company generally intends to maintain a conservative
dividend payout ratio, reserving such amounts as it considers necessary for the
expansion of Properties in its portfolio, debt reduction, the acquisition of
interests in new properties as suitable opportunities arise, and such other
factors as the Board of Trustees considers appropriate.
Cash dividends paid to common shareholders increased to $19.6 million in
1998, compared to $12.8 million in 1997 and $10.3 million in 1996. The Company's
dividend and distribution FFO payout ratio for 1998, 1997, and 1996 was
approximately 73.6%, 73.5%, and 77.9% respectively.
Although the Company receives most of its rental payments on a monthly
basis, it intends to continue paying dividends quarterly. Amounts accumulated in
advance of each quarterly distribution are invested by the Company in short-term
money market or other suitable instruments.
The Company anticipates that cash flows from operations will continue to
provide adequate capital to fund its operating and administrative expenses,
regular debt service obligations and all dividend payments in accordance with
REIT requirements in both the short-term and long-term. In addition, the Company
anticipates that cash on hand, borrowings under its unsecured credit facility,
issuance of equity and debt, as well as other debt and equity alternatives, will
provide the necessary capital required by the Company. Cash flows from
operations as reported in the Consolidated Statements of Cash Flows increased to
$32.0 million for 1998 from $23.8 million for 1997 and $15.0 million for 1996.
UPREIT Structure. The Company's UPREIT structure permits the Company to
effect acquisitions by issuing to a seller of real estate, as a form of
consideration, interests in partnerships controlled by the Company. All of such
interests are redeemable at certain times for common shares on a one-for-one
basis and all of such interests require the Company to pay certain distributions
to the holders of such interests. The Company accounts for these interests in a
manner similar to a minority interest holder. The number of common shares that
will be outstanding in the future should be expected to increase, and minority
interest expense should be expected to decrease, from time to time, as such
partnership interests are redeemed for common shares. The following table
provides certain information with respect to such partnership interests as of
December 31, 1998 (assuming the Company's annual dividend rate remains at $1.20
per share).
18
<PAGE> 20
<TABLE>
<CAPTION>
CURRENT TOTAL CURRENT
TOTAL ANNUALIZED ANNUALIZED
REDEEMABLE FOR NUMBER AFFILIATE PER UNIT DISTRIBUTION
COMMON SHARES : OF UNITS UNITS DISTRIBUTION ($000)
- --------------- --------- --------- ------------ -------------
<S> <C> <C> <C> <C>
At any time....................................... 169,109 130,531 $1.20 $ 203
At any time....................................... 1,303,867 120,546 1.08 1,408
January 1999...................................... 147,246 52,144 1.12 165
January 1999...................................... 1,670,212 606,198 1.20 2,004
March 1999........................................ 125,416 -- 1.20 151
April 1999........................................ 480,028 -- 1.20 576
July 1999......................................... 279,191 -- 1.20 335
September 1999.................................... 1,450,036 475,785 1.20 1,740
December 1999..................................... 214,167 105,245 1.20 257
January 2003...................................... 7,441 978 -- --
March 2004........................................ 52,335 797 0.27 14
March 2004........................................ 27,314 -- -- --
November 2004..................................... 35,400 2,856 -- --
March 2005........................................ 38,661 1,933 -- --
January 2006...................................... 207,728 416 -- --
February 2006..................................... 34,852 1,743 -- --
May 2006.......................................... 11,766 695 0.29 3
--------- --------- ----- ------
Total................................... 6,254,769 1,499,867 $1.10 $6,856
========= ========= ===== ======
</TABLE>
Affiliate units, which are included in total units, represent OP Units held
by two executive officers (including their affiliates) of the Company.
FINANCING
Partnership Mergers. On January 29, 1998 two affiliated partnerships
merged into a controlled partnership, Lepercq Corporate Income Fund ("LCIF"). As
a result of the merger, LCIF issued 1,454,906 partnership units redeemable for
the Company's common shares, which units are entitled to distributions at the
same dividend rate as common shares. At the time of the merger, the
partnerships' sole assets were approximately $23.5 million in cash from prior
property sales and the right to acquire properties in tax free exchanges under
Internal Revenue Code Section 1031. During 1998, the Company completed such tax
free exchanges.
Revolving Credit Facility. In July 1998, the Company obtained a three year
unsecured credit facility with a maximum borrowing availability of $100 million.
This replaced the Company's $60 million, secured credit facility. The credit
facility bears interest at 137.5 basis points over LIBOR and has an interest
rate period of one, three, or six months, at the option of the Company. The
credit facility contains various leverage, debt service coverage, net worth
maintenance and other customary covenants. Approximately $6.4 million was
available to the Company at December 31, 1998. The amount of available
borrowings can increase by identifying additional unencumbered properties as
eligible for the computation of the borrowing base which supports the credit
facility. As of December 31, 1998 approximately $52.6 million was outstanding.
Debt Service Requirements. The Company's principal liquidity needs are the
payment of interest and principal on outstanding indebtedness. As of December
31, 1998, a total of forty-four properties were subject to outstanding mortgages
which had an aggregate principal amount of $300.3 million. The weighted average
interest rate on the Company's debt, including line of credit borrowings, on
such date was approximately 7.65%. Approximate balloon payment amounts having an
weighted average interest rate of 8.72% due the next five calendar years are as
follows: $5.56 million in 1999; $13.1 million in 2000; $1.0 million in 2001;
$9.6 million in 2002 and $0 in 2003. The ability of the Company to make such
balloon payments will depend upon its ability to refinance the mortgage related
thereto, sell the related property, have available amounts under its
19
<PAGE> 21
unsecured credit facility or access other capital. The ability of the Company to
accomplish such goals will be affected by numerous economic factors affecting
the real estate industry, including the availability and cost of mortgage debt
at the time, the Company's equity in the mortgaged properties, the financial
condition of the Company, the operating history of the mortgaged properties, the
then current tax laws and the general national, regional and local economic
conditions.
Lease Obligations. Since the Company's tenants bear all or substantially
all of the cost of property maintenance and capital improvements, the Company
does not anticipate significant needs for cash for property maintenance or
repairs. The Company generally funds property expansions with additional secured
borrowings, the repayment of which is funded out of rental increases under the
leases covering the expanded properties.
Shares Repurchase. On September 15, 1998, the Company announced that its
Board of Trustees had authorized the Company to repurchase, from time to time,
up to 1,000,000 common shares depending on market conditions and other factors.
As of December 31, 1998, the Company had repurchased and retired 129,875 common
shares, at an average price of approximately $11.92 per common share.
IMPACT OF YEAR 2000
The Year 2000 compliance issue concerns the inability of computer systems
to accurately calculate, store or use a date after 1999. This could result in a
system failure or miscalculations causing disruptions of operations. The Year
2000 issue affects virtually all companies and organizations.
The Company has been taking the necessary steps to understand the nature
and extent of the work required to make its core information computer systems
and non-information embedded systems Year 2000 compliant. The Company has
determined that it will not be necessary to significantly modify, update or
replace its computer hardware and software applications.
The vendor that provides the Company's existing general ledger software has
released a Year 2000 compliant version of its product which the Company is
currently using. The cost of the general ledger system did not have a material
effect on the Company's financial condition or results of operations.
The Company's Properties, which have no scheduled lease expirations prior
to August 17, 2000, are subject to net leases and accordingly the Year 2000
compliance of embedded systems (e.g., security, HVAC, fire and elevator systems)
are the responsibility of the tenants. The Company has contacted each of its
tenants asking them to identify and evaluate the changes and modifications
necessary to make these systems compliant for Year 2000 processing. The costs
associated with the effort to make the embedded systems Year 2000 compliant are
the tenant's responsibility. However, no assurances can be given that the
Properties embedded systems will be Year 2000 compliant by December 31, 1999.
However, compliance costs, if any, incurred by the Company would not be
significant.
The Company is communicating with significant third-party service providers
and vendors with which it does business to determine the efforts being made on
their part for compliance. The Company is attempting to receive compliance
certificates from all third parties that have a material impact on the Company's
operations, but no assurance can be given with respect to the cost or timing of
such efforts or the potential effects of any failure to comply.
Management will closely monitor the Company's entire Year 2000 compliance
function and will develop contingency plans no later than third quarter of 1999,
if necessary.
20
<PAGE> 22
RESULTS OF OPERATIONS ($000)
<TABLE>
<CAPTION>
INCREASE
----------------------
SELECTED INCOME STATEMENT DATA 1998 1997 1996 1998-1997 1997-1996
- ------------------------------ ------- ------ ------ --------- ---------
<S> <C> <C> <C> <C> <C>
Total revenues............................ $65,117 43,569 31,675 $21,548 $11,894
Total expenses............................ 45,059 32,862 25,519 12,197 7,343
Interest................................ 23,055 16,644 12,818 6,411 3,826
Depreciation & amortization............. 15,083 10,608 7,627 4,475 2,981
General & administrative................ 4,518 3,644 3,050 874 594
Transactional expenses.................. 559 -- -- 559 --
Net Income................................ $15,737 8,593 5,466 $ 7,144 $ 3,127
</TABLE>
Changes in the results of operations for the Company are primarily due to
the growth of its portfolio and costs associated with such growth. The increase
in interest expense due to the growth of the Company's portfolio has been offset
by a reduction in the weighted average interest rate from 9.04% as of December
31, 1996 to 8.17% as of December 31, 1997, and 7.65% as of December 31, 1998 due
to debt refinancings, repayments and lower variable interest rates negotiated on
the credit facility and lower interest rates on new debt incurred by the
Company. The Company's general and administrative expenses have decreased as a
percentage of total revenue to 6.9% in 1998 from 8.4% in 1997 and 9.6% in 1996
due to the growth of the Company's portfolio relative to these expenses.
Transactional expenses in 1998 relate to costs incurred in an abandoned private
equity placement.
The increase in net income for the year ended December 31, 1998 was
primarily attributable to the growth in the Company's real estate portfolio
combined with reduced borrowing costs offset by a slight increase in general and
administrative expenses.
The increase in net income for the year ended December 31, 1997 was
primarily attributable to the gain on sale of one property in the amount of $3.5
million offset by a $3.2 million extraordinary loss on extinguishment of debt.
FUNDS FROM OPERATIONS
Management believes that Funds From Operations enhances an investor's
understanding of the Company's financial condition, results of operations and
cash flows and believes it is an appropriate performance measure for an equity
REIT which provides an indication of a REIT's ability to make cash
distributions. Funds From Operations is defined by NAREIT as "net income (or
loss) (computed in accordance with generally accepted accounting principles
("GAAP")), excluding gains (or losses) from debt restructuring and sales of
property, plus real estate depreciation and amortization and after adjustments
for unconsolidated partnerships and joint ventures." The Company's method of
calculating Funds From Operations excludes other non-recurring revenue and
expense items and may be different from methods used by other REITs and,
accordingly, is not comparable to such other REITs. Funds From Operations should
not be considered an alternative to net income as an indicator of operating
performance or to cash flows from operating activities as determined in
accordance with GAAP, or as a measure of liquidity to other consolidated income
or cash flow statement data as determined in accordance with GAAP.
21
<PAGE> 23
The following table reflects the calculation of the Company's FFO and cash
flow activities for each of the years in the three year period ended December
31, 1998 ($000):
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- --------
<S> <C> <C> <C>
Net income............................................... $ 15,737 $ 8,593 $ 5,466
Depreciation and amortization of real estate........... 15,083 10,608 7,627
Minority interest's share of net income................ 3,933 2,442 690
Loss from debt restructuring........................... -- 3,189 --
Property arbitration litigation expense................ -- 168 --
Loss (gain) on sale of property........................ 388 (3,517) --
Transactional expenses................................. 559 -- --
--------- --------- --------
Funds from operations before items below............... 35,700 21,483 13,783
Adjustments for other items(1)
Shares compensation.................................... -- -- 588
--------- --------- --------
Funds From Operations............................... $ 35,700 $ 21,483 $ 14,371
========= ========= ========
Cash flows from operating activities..................... $ 32,008 $ 23,823 $ 14,975
Cash flows from investing activities..................... (111,080) (110,767) (16,955)
Cash flows from financing activities..................... 86,516 88,116 1,859
</TABLE>
The Company's dividend and distribution FFO payout ratio was 73.6%, 73.5%
and 77.9% for the years ended December 31, 1998, 1997 and 1996 respectively.
- ---------------
(1) For purposes of the calculation of FFO, the Company has added back to net
income amounts for shares compensation which management believes to be
appropriate adjustments based on the infrequent and unusual nature of such
amounts. The Company's method of calculating FFO may be different from
methods used by other REITs. Shares compensation represents the expense of a
simultaneous exercise and re-granting of options to the Company's management
during the period between July 1995 and January 1996, which was intended to
increase management's ownership in the Company (a practice which has been
discontinued). The Board of Trustees has determined that the Company will
not engage in such practices in the future.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
The Company's exposure to market risk relates to its variable rate
unsecured credit facility. As of December 31, 1998 the Company's variable rate
indebtedness represented 14.6% of total long-term indebtedness. During 1998,
this variable rate indebtedness had a weighted average interest rate of 7.50%.
Had the weighted average interest rate been 100 basis points higher the
Company's net income would have been approximately $350,000 less.
22
<PAGE> 24
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
LEXINGTON CORPORATE PROPERTIES TRUST
AND CONSOLIDATED SUBSIDIARIES
INDEX
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Independent Auditors' Report................................ 24
Consolidated Balance Sheets as of December 31, 1998 and
1997...................................................... 25
Consolidated Statements of Income for the years ended
December 31, 1998, 1997 and 1996.......................... 26
Consolidated Statements of Changes in Shareholders' Equity
for the years ended December 31, 1998, 1997 and 1996...... 27
Consolidated Statements of Cash Flows for the years ended
December 31, 1998, 1997 and 1996.......................... 28
Notes to Consolidated Financial Statements.................. 29-39
Financial Statement Schedule
Schedule III -- Real Estate and Accumulated Depreciation.... 40-41
</TABLE>
23
<PAGE> 25
INDEPENDENT AUDITORS' REPORT
The Shareholders
Lexington Corporate Properties Trust:
We have audited the consolidated financial statements of Lexington
Corporate Properties Trust and consolidated subsidiaries as listed in the
accompanying index. In connection with our audits of the consolidated financial
statements, we also have audited the financial statement schedule as listed in
the accompanying index. These consolidated financial statements and the
financial statement schedule are the responsibility of the Company's management.
Our responsibility is to express an opinion on these consolidated financial
statements and the financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Lexington
Corporate Properties Trust and consolidated subsidiaries as of December 31, 1998
and 1997, and the results of their operations and their cash flows for each of
the years in the three-year period ended December 31, 1998 in conformity with
generally accepted accounting principles. Also in our opinion, the related
financial statement schedule, when considered in relation to the basic
consolidated financial statements taken as a whole, presents fairly, in all
material respects, the information set forth therein.
KPMG LLP
New York, New York
January 25, 1999
24
<PAGE> 26
LEXINGTON CORPORATE PROPERTIES TRUST
AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
($000 EXCEPT SHARE AND PER SHARE AMOUNTS)
DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
ASSETS
Real estate, at cost:
Buildings and building improvements....................... $578,836 $408,661
Land and land estates..................................... 85,781 47,769
Land improvements......................................... 2,831 2,831
Fixtures and equipment.................................... 8,345 8,345
-------- --------
675,793 467,606
Less: accumulated depreciation............................ 66,076 50,993
-------- --------
609,717 416,613
Property held for sale...................................... -- 24,501
Cash and cash equivalents................................... 11,084 3,640
Restricted cash............................................. 3,545 5,499
Deferred expenses (net of accumulated amortization of $3,515
in 1998 and $2,543 in 1997)............................... 4,942 4,283
Rent receivable............................................. 12,436 7,638
Escrow deposits............................................. 104 1,249
Other assets, net........................................... 5,179 4,950
-------- --------
$647,007 $468,373
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Mortgages payable........................................... $300,279 $207,553
Credit facility............................................. 52,621 12,000
Subordinated notes payable, including accrued interest...... 1,973 1,973
Origination fees payable, including accrued interest........ 5,849 5,885
Accounts payable and other liabilities...................... 4,588 4,880
Accrued interest payable.................................... 2,172 1,007
-------- --------
367,482 233,298
Minority interests.......................................... 74,381 28,240
-------- --------
441,863 261,538
-------- --------
Commitments and Contingencies (notes 4, 7 and 10)
Preferred shares, par value $0.0001 per share; authorized
10,000,000 shares. Class A Senior Cumulative Convertible
Preferred, liquidation preference $25,000, 2,000,000
issued and outstanding.................................... 24,369 24,369
-------- --------
Shareholders' equity:
Common shares, par value $0.0001 per share, authorized
40,000,000 shares, 17,103,532 and 16,509,610 shares
issued and outstanding in 1998 and 1997,
respectively........................................... 2 2
Additional paid-in-capital................................ 241,924 235,469
Accumulated distributions in excess of net income......... (59,155) (53,005)
-------- --------
182,771 182,466
Less: notes receivable from officers/shareholders......... (1,996) --
-------- --------
Total shareholders' equity........................ 180,775 182,466
-------- --------
$647,007 $468,373
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
25
<PAGE> 27
LEXINGTON CORPORATE PROPERTIES TRUST
AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
($000 EXCEPT SHARE AND PER SHARE AMOUNTS)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
----------- ----------- ----------
<S> <C> <C> <C>
Revenues:
Rental............................................. $ 62,846 $ 42,493 $ 31,244
Interest and other................................. 2,271 1,076 431
----------- ----------- ----------
65,117 43,569 31,675
----------- ----------- ----------
Expenses:
Interest expense................................... 23,055 16,644 12,818
Depreciation and amortization of real estate....... 15,083 10,608 7,627
Amortization of deferred expenses.................. 987 876 619
General and administrative expenses................ 4,518 3,644 3,050
Property operating expenses........................ 857 922 1,405
Transactional expenses............................. 559 -- --
Property arbitration litigation expense............ -- 168 --
----------- ----------- ----------
45,059 32,862 25,519
----------- ----------- ----------
Income before gain (loss) on sale of properties,
minority interests and extraordinary item.......... 20,058 10,707 6,156
(Loss) gain on sale of properties.................... (388) 3,517 --
----------- ----------- ----------
Income before minority interests and extraordinary
item............................................... 19,670 14,224 6,156
Minority interests................................... 3,933 2,442 690
----------- ----------- ----------
Income before extraordinary item..................... 15,737 11,782 5,466
Extraordinary item................................... -- 3,189 --
----------- ----------- ----------
Net income................................. $ 15,737 $ 8,593 $ 5,466
=========== =========== ==========
Income per common share -- basic:
Income before extraordinary item..................... $ 0.79 $ 0.61 $ 0.58
Extraordinary item................................... -- (0.28) --
----------- ----------- ----------
Net income........................................... $ 0.79 $ 0.33 $ 0.58
=========== =========== ==========
Weighted average common shares outstanding........... 16,835,414 11,444,589 9,392,727
=========== =========== ==========
Income per common share -- diluted:
Income before extraordinary item..................... $ 0.78 $ 0.59 $ 0.56
Extraordinary item................................... -- (0.27) --
----------- ----------- ----------
Net income........................................... $ 0.78 $ 0.32 $ 0.56
=========== =========== ==========
Weighted average common shares outstanding........... 21,983,876 11,639,683 10,897,011
=========== =========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
26
<PAGE> 28
LEXINGTON CORPORATE PROPERTIES TRUST
AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
($000 EXCEPT SHARE AND PER SHARE AMOUNTS)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
ACCUMULATED NOTES
ADDITIONAL DISTRIBUTIONS RECEIVABLE
NUMBER PAID-IN IN EXCESS OF OFFICERS/ TOTAL
OF SHARES AMOUNT CAPITAL NET INCOME SHAREHOLDERS EQUITY
----------- ------ ---------- ------------- ------------ --------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1995... 9,331,982 $ 1 $135,954 $(39,437) $ -- $ 96,518
Net income..................... -- -- -- 5,466 -- 5,466
Dividends paid to shareholders
($1.10 per share)............ -- -- -- (10,327) -- (10,327)
Common shares issued, net of
offering costs............... 94,918 -- 1,002 -- -- 1,002
----------- --- -------- -------- ------- --------
Balance at December 31, 1996... 9,426,900 1 136,956 (44,298) -- 92,659
Net income..................... -- -- -- 8,593 -- 8,593
Dividends paid to common share-
holders ($1.16 per share).... -- -- -- (12,836) -- (12,836)
Dividends paid to preferred
share-holders ($0.91 per
share)....................... -- -- -- (916) -- (916)
Deemed dividend related to
issuance of preferred
shares....................... -- -- 3,548 (3,548) -- --
Common shares issued, net of
offering costs............... 7,082,710 1 94,965 -- -- 94,966
----------- --- -------- -------- ------- --------
Balance at December 31, 1997... 16,509,610 2 235,469 (53,005) -- 182,466
Net income..................... -- -- -- 15,737 -- 15,737
Dividends paid to common share-
holders ($1.17 per share).... -- -- -- (19,633) -- (19,633)
Dividends paid to preferred
share-holders ($1.2285 per
share)....................... -- -- -- (2,254) -- (2,254)
Common shares issued, net...... 723,797 -- 8,013 -- (1,996) 6,017
Common shares repurchased and
retired...................... (129,875) -- (1,558) -- -- (1,558)
----------- --- -------- -------- ------- --------
Balance at December 31, 1998... 17,103,532 $ 2 $241,924 $(59,155) $(1,996) $180,775
=========== === ======== ======== ======= ========
</TABLE>
See accompanying notes to consolidated financial statements.
27
<PAGE> 29
LEXINGTON CORPORATE PROPERTIES TRUST
AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
($000)
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- --------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income................................................ $ 15,737 $ 8,593 $ 5,466
Adjustments to reconcile net income to net cash provided
by operating activities net of effects of acquisitions:
Depreciation and amortization.......................... 16,070 11,484 8,246
Minority interests..................................... 3,933 2,442 690
Loss (gain) on sale of properties...................... 388 (3,517) --
Other non cash charges................................. 75 83 67
Extraordinary item..................................... -- 3,189 --
Decrease (increase) in accounts payable and other
liabilities.......................................... (292) 3,280 746
Other adjustments, net................................. (3,903) (1,731) (240)
--------- --------- --------
Net cash provided by operating activities......... 32,008 23,823 14,975
--------- --------- --------
Cash flows from investing activities:
Net proceeds from sale of properties...................... 24,113 21,362 --
Acquisitions of real estate properties and partnerships,
net of issuance of limited partnership units and common
shares, cash received and liabilities assumed.......... (135,193) (132,129) (16,955)
--------- --------- --------
Net cash used in investing activities............. (111,080) (110,767) (16,955)
--------- --------- --------
Cash flows from financing activities:
Proceeds of mortgages and notes payable................... 160,483 130,942 19,619
Dividends to common and preferred shareholders............ (21,887) (13,752) (10,327)
Principal payments on debt, excluding normal
amortization........................................... (64,412) (112,451) --
Principal amortization payments........................... (6,939) (5,950) (7,534)
Proceeds from the issuance of limited partnership units... 23,449 -- --
Common shares issued, net of offering costs............... 293 75,133 1,002
Preferred shares issued, net of offering costs............ -- 24,369 --
Prepayment premium on early retirement of debt............ -- (3,560) --
Cash distributions to minority interests.................. (4,381) (2,034) (871)
Decrease (increase) in escrow deposits.................... 1,145 (1,145) 550
Increase in deferred expenses............................. (1,631) (1,687) (294)
Decrease (increase) in restricted cash.................... 1,954 (1,749) (286)
Common shares repurchased................................. (1,558) -- --
--------- --------- --------
Net cash provided by financing activities......... 86,516 88,116 1,859
--------- --------- --------
Increase (decrease) in cash and cash equivalents............ 7,444 1,172 (121)
Cash and cash equivalents, beginning of year................ 3,640 2,468 2,589
--------- --------- --------
Cash and cash equivalents, end of year...................... $ 11,084 $ 3,640 $ 2,468
========= ========= ========
Supplemental disclosure of cash flow information:
Cash paid during the year for interest.................... $ 21,916 $ 15,801 $ 12,828
========= ========= ========
Cash paid during the year for taxes....................... $ 261 $ 106 $ 156
========= ========= ========
</TABLE>
See accompanying notes to consolidated financial statements.
28
<PAGE> 30
LEXINGTON CORPORATE PROPERTIES TRUST
AND CONSOLIDATED SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) THE COMPANY
Lexington Corporate Properties Trust, (the "Company"), is a Maryland
statutory real estate investment trust ("REIT") that acquires, owns, and manages
a geographically diversified portfolio of net leased office, industrial and
retail properties. As of December 31, 1998 the Company owned 66 properties in 29
states. The real properties owned by the Company are subject to triple net
leases to corporate tenants.
On September 15, 1998, the Company's Board of Trustees had authorized the
Company to repurchase, from time to time, up to 1,000,000 common shares,
depending on market conditions and other factors. During 1998, the Company
repurchased and retired 129,875 common shares at an average price of
approximately $11.92 per common share.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis Of Presentation and Consolidation. The Company's consolidated
financial statements are prepared on the accrual basis of accounting. The
financial statements reflect the accounts of the Company and its controlled
subsidiaries, including Lepercq Corporate Income Fund L.P. ("LCIF") and Lepercq
Corporate Income Fund II L.P. ("LCIF II"). The Company is the sole general
partner and majority limited partner of LCIF and LCIF II.
Real Estate. Real estate assets are stated at cost, less accumulated
depreciation and amortization. If there is an event or change in circumstance
that indicates an impairment in the value of a property has occurred, the
Company's policy is to assess any impairment in value by making a comparison of
the current and projected operating cash flows of each such property over its
remaining useful life, on an undiscounted basis, to the carrying amount of the
property. If such carrying amounts are in excess of the estimated projected
operating cash flows of the property, the Company would recognize an impairment
loss equivalent to an amount required to adjust the carrying amount to its
estimated fair market value. No such impairment loss has occurred.
Depreciation is determined by the straight-line method over the remaining
estimated economic useful lives of the properties. The Company generally
depreciates buildings and building improvements over a 40-year period, land
improvements over a 20-year period, and fixtures and equipment over a 12-year
period.
All direct costs associated with the acquisition of real estate are
capitalized. Expenditures for maintenance and repairs are charged to operations
as incurred. Significant renovations which extend the useful life of the
properties are capitalized.
Revenue. Rental revenue is recognized on a straight-line basis over the
minimum lease terms. The Company's rent receivable primarily represents the
amounts of the excess of rental revenues recognized on a straight-line basis
over the annual rents collectible under the leases.
Deferred Expenses. Deferred expenses are composed principally of debt
placement, mortgage loan and other loan fees, and are amortized using the
straight-line method, which approximates the interest method, over the terms of
the debt instruments.
Tax Status. The Company has made an election to qualify, and believes it
is operating so as to qualify, as a real estate investment trust under the
Internal Revenue Code. A real estate investment trust is generally not subject
to Federal income tax on that portion of its real estate investment trust
taxable income which is distributed to its shareholders, provided that at least
95% of taxable income is distributed. As distributions have exceeded taxable
income, no provision for Federal income taxes has been made. State income taxes
are not significant.
29
<PAGE> 31
LEXINGTON CORPORATE PROPERTIES TRUST
AND CONSOLIDATED SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of the average taxable nature of the Company's dividends for the
three years ended December 31 is as follows:
<TABLE>
<CAPTION>
1998 1997 1996
------- ------- -------
<S> <C> <C> <C>
Total dividends per share............................. $ 1.17 $ 1.16 $ 1.10
======= ======= =======
Percent taxable as ordinary income.................... 88.06% 68.91% 95.46%
Percent taxable as long-term capital gains............ 2.30% -- --
Percent non-taxable as return of capital.............. 9.64% 31.09% 4.54%
------- ------- -------
100.00% 100.00% 100.00%
======= ======= =======
</TABLE>
Earnings Per Share. Basic net income per share is computed by dividing net
income reduced by all preferred dividends by the weighted average number of
common shares outstanding during the period. Diluted net income per share
amounts are similarly computed but include the effect, when dilutive, of
in-the-money common share options and the Company's other dilutive securities
which can include operating partnership units, exchangeable notes and
convertible preferred shares. In 1998, the exchangeable notes and preferred
shares were not dilutive; in 1997 all the securities were not dilutive; and in
1996 the exchangeable notes were not dilutive.
Cash and Cash Equivalents. The Company considers all highly liquid
instruments with maturities of three months or less from the date of purchase to
be cash equivalents.
Restricted Cash. Includes tenants security deposits and amounts for
certain debt obligations including funding requirements.
Use of Estimates. Management has made a number of estimates and
assumptions relating to the reporting of assets and liabilities, the disclosure
of contingent assets and liabilities and the reported amounts of revenues and
expenses to prepare these consolidated financial statements in conformity with
generally accepted accounting principles. Actual results could differ from those
estimates.
Reclassifications. Certain amounts included in prior years' financial
statements have been reclassified to conform with the current year presentation.
New Accounting Pronouncements. In June 1997, SFAS No. 130, "Reporting
Comprehensive Income", and SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information", were issued. SFAS No. 130 establishes
standards for reporting and displaying comprehensive income and its components
in a financial statement that is displayed with the same prominence as other
financial statements. Reclassification of financial statements for earlier
periods, provided for comparative purposes, is required. The statement also
requires the accumulated balance of other comprehensive income to be displayed
separately from retained earnings and additional paid-in capital in the equity
section of the balance sheet. SFAS No. 131 establishes standards for reporting
information about operating segments in annual and interim financial statements.
Operating segments are defined as components of an enterprise about which
separate financial information is available that is evaluated regularly by the
chief operating decision maker in deciding how to allocate resources and in
assessing performance. Categories required to be reported as well as reconciled
to the financial statements are segment profit or loss, certain specific revenue
and expense items, and segment assets. SFAS No. 130 and No. 131 are effective
for fiscal years beginning after December 15, 1997. The adoption of these
standards had no impact on the Company's consolidated financial position and
consolidated operating results as of and for the year ended December 31, 1998.
30
<PAGE> 32
LEXINGTON CORPORATE PROPERTIES TRUST
AND CONSOLIDATED SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(3) EARNINGS PER SHARE
The following is a reconciliation of numerators and denominators of the
basic and diluted earnings per share computations for each of the years in the
three year period ended December 31, 1998 ($000's except per share data):
<TABLE>
<CAPTION>
1998 1997 1996
----------- ----------- -----------
<S> <C> <C> <C>
BASIC
Income before extraordinary item............ $ 15,737 $ 11,782 $ 5,466
Less cash and deemed dividends attributable
to preferred shares....................... (2,478) (4,871) --
----------- ----------- -----------
Income attributed to common shareholders
before extraordinary item................. 13,259 6,911 5,466
Extraordinary item.......................... -- (3,189) --
----------- ----------- -----------
Net income attributed to common
shareholders.............................. $ 13,259 $ 3,722 $ 5,466
=========== =========== ===========
Weighted average number of common shares
outstanding............................... 16,835,414 11,444,589 9,392,727
=========== =========== ===========
Income per common share -- basic:
Income before extraordinary item............ $ 0.79 $ 0.61 $ 0.58
Extraordinary item.......................... -- (0.28) --
----------- ----------- -----------
Net income.................................. $ 0.79 $ 0.33 $ 0.58
=========== =========== ===========
DILUTED
Income attributed to common shareholders
before extraordinary item................. $ 13,259 $ 6,911 $ 5,466
Add incremental income attributed to assumed
conversion of dilutive securities......... 3,831 -- 588
----------- ----------- -----------
Income attributed to common shareholders
before extraordinary item................. 17,090 6,911 6,054
Extraordinary item.......................... -- (3,189) --
----------- ----------- -----------
Net income attributed to common
shareholders.............................. $ 17,090 $ 3,722 $ 6,054
=========== =========== ===========
Weighted average number of shares used in
calculation of basic earnings per share... 16,835,414 11,444,589 9,392,727
Add incremental shares representing:
Shares issuable upon exercise of employee
stock options.......................... 156,391 195,094 50,513
Shares issuable upon conversion of
dilutive securities.................... 4,992,071 -- 1,453,771
----------- ----------- -----------
Weighted average number of shares used in
calculation of diluted earnings per common
share..................................... 21,983,876 11,639,683 10,897,011
=========== =========== ===========
Income per common share -- diluted:
Income before extraordinary item............ $ 0.78 $ 0.59 $ 0.56
Extraordinary item.......................... -- (0.27) $ --
----------- ----------- -----------
Net income.................................. $ 0.78 $ 0.32 $ 0.56
=========== =========== ===========
</TABLE>
31
<PAGE> 33
LEXINGTON CORPORATE PROPERTIES TRUST
AND CONSOLIDATED SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(4) INVESTMENTS IN REAL ESTATE
During 1998, 1997 and 1996 the Company made the following acquisitions:
<TABLE>
<CAPTION>
ANNUALIZED
BASE RENT NET
ACQUISITION DECEMBER RENTABLE
DATE OF COST 31, LEASE SQUARE
ACQUISITION TENANT LOCATION ($000'S) ($000'S) EXPIRES FEET
- ----------- --------------------------------------- ---------------------- ----------- ---------- ------- ---------
<S> <C> <C> <C> <C> <C> <C>
1998
- ----
March 27 Jones Apparel Group, Inc. Bristol, PA $ 12,539 $ 1,224 03-13 255,019
March 27 Fidelity Corporate Real Estate, LLC Hebron, KY 8,077 817 04-07 81,744
March 27 Kelsey-Hayes (Tech I & II) Livonia, MI 16,442 1,637 04-07 180,230
May 11 Eagle Hardware & Garden. Inc Federal Way, WA 13,751 1,233 08-17 133,861
May 11 Eagle Hardware & Garden. Inc. Anchorage, AK 17,690 1,588 10-17 157,525
May 15 Stone Container Corporation Columbia, SC 4,230 549 08-12 185,960
May 18 The Wackenhut Corporation Palm Beach Gardens, FL 19,817 2,241 02-11 127,855
June 19 Michaels Stores, Inc. Lancaster, CA 15,102 1,430 06-13 431,250
July 2 Fleet Mortgage Group, Inc. Florence, SC 15,061 1,635 06-08 177,747
July 24 Lear Technologies LLC Auburn Hills, MI 13,939 1,365 07-06 183,717
August 27 Kmart Corporation Warren, OH 63,877 8,932 09-07 1,700,000
October 26 Corporate Express Office Products, Inc. Baton Rouge, LA 3,425 368 10-13 65,043
December 31 Upton's, Inc. Columbia, MD 4,880 549 07-09 60,000
-------- ------- ---------
TOTAL $208,830 $23,568 3,739,951
======== ======= =========
1997
- ----
February 20 Johnson Controls, Inc. Cottondale, AL $ 2,910 $ 313 02-07 58,800
March 19 Exel Logistics Inc. Various * 27,428 3,003 11-06 761,200
May 1 Cymer, Inc. San Diego, CA 7,707 860 12-09 65,755
July 9 Bull HN Info. Systems, Inc. Phoenix, AZ 10,990 1,032 10-05 137,058
July 22 Lockheed Martin Corporation Marlborough, MA 15,541 1,671 12-06 126,000
September 4 FirstPlus Financial Group, Inc. Dallas, TX 32,645 3,557 08-12 247,968
October 31 Ryder Integrated Logistics, Inc. Waterloo, IA 9,321 1,002 07-12 276,480
December 31 Stevens-Arnold, Inc. Milpitas, CA 22,138 2,667 12-05 100,026
December 31 Allied Holdings, Inc. Decatur, GA 14,633 1,530 12-07 112,248
December 31 Circuit City Stores, Inc. Richmond, VA 27,234 2,791 02-10 288,562
December 31 Dana Corp. Gordonsville, TN 3,377 341 08-07 148,000
December 31 Allegiance Healthcare Corp. Bessemer, AL 4,902 472 09-01 123,924
-------- ------- ---------
TOTAL $178,826 $19,239 2,446,021
======== ======= =========
1996
- ----
May 22 Northwest Pipeline Corp. Salt Lake City, UT $ 55,396 $ 8,571 09-09 295,000
May 31 Wal-Mart Stores, Inc. Jacksonville, AL 2,049 146 01-09 56,132
December 23 Johnson Controls, Inc Plymouth, MI 6,329 709 12-06 134,160
December 23 Johnson Controls, Inc. Oberlin, OH 4,791 536 12-06 111,160
December 23 SKF USA, Inc. Franklin, NC 3,448 322 12-14 72,868
December 31 Toys "R" Us, Inc. Tulsa, OK 2,711 356 05-06 43,123
December 31 Toys "R" Us, Inc. Clackamas, OR 3,173 417 05-06 42,842
December 31 Toys "R" Us, Inc. Lynwood, WA 2,963 389 05-06 43,105
December 31 Toys "R" Us, Inc. Houston, TX 3,793 478 08-06 123,293
December 31 Liberty House, Inc. Honolulu, HI 10,608 971 09-09 85,610
-------- ------- ---------
TOTAL $ 95,261 $12,895 1,007,293
======== ======= =========
</TABLE>
- ---------------
* Consists of three properties; two located in New Kingston, PA, one in
Mechanicsburg, PA.
32
<PAGE> 34
LEXINGTON CORPORATE PROPERTIES TRUST
AND CONSOLIDATED SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company sold a property in each of 1998 and 1997 for cash proceeds of
$24,113,000 and $21,362,000, respectively, which resulted in a 1998 loss of
$388,000 and a 1997 gain of $3,517,000.
In addition the Company is obligated to purchase a property for $38.7
million which is currently being developed and expected to be delivered no later
than January 2000.
The following unaudited pro forma operating information for the years ended
December 31, 1998 and 1997 has been prepared as if the acquisitions and
dispositions in 1998 and 1997 had been consummated as of January 1, 1997. The
information does not purport to be indicative of what the operating results of
the Company would have been had the acquisitions been consummated on that date.
Pro forma amounts are as follows:
<TABLE>
<CAPTION>
($000'S, EXCEPT PER SHARE DATA)
--------------------------------------
UNAUDITED UNAUDITED
PRO FORMA PRO FORMA
YEAR ENDED YEAR ENDED
DECEMBER 31, 1998 DECEMBER 31, 1997
----------------- -----------------
<S> <C> <C>
Revenues........................................... $76,242 $76,328
Net income......................................... 18,683 12,450
Per common share:
Income before extraordinary item -- basic........ 0.96 0.92
Income before extraordinary item -- diluted...... 0.89 0.84
Net income -- basic.............................. 0.96 0.66
Net income -- diluted............................ 0.89 0.60
</TABLE>
33
<PAGE> 35
(5) MORTGAGES AND NOTES PAYABLE
The following table sets forth certain information regarding the Company's
aggregate indebtedness as of December 31, 1998 and 1997 (in $000's):
<TABLE>
<CAPTION>
INTEREST BALLOON
PROPERTY LOCATION 1998 1997 RATE MATURITY PAYMENT
- ----------------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
REMIC Financing (a)....................... $ 67,173 $ 68,020 8.100% 05-25-05 $ 60,001
Credit Facility (b)....................... 52,621 12,000 6.680% 07-24-01 52,621
Individually encumbered properties:
Phoenix, AZ (Bank One).................... 5,538 5,630 10.750% 05-01-99 5,563
Richmond, VA.............................. 13,093 13,093 8.875% 03-01-00 13,093
Bessemer, AL.............................. 1,000 1,000 9.500% 09-01-01 1,000
Tampa, FL (Queen Palm Dr.) (c)............ 4,290 4,290 7.050% 08-15-02 4,020
Tampa, FL (North 30th) (c)................ 5,697 5,860 7.050% 08-15-02 4,768
Gordonsville, TN.......................... 1,158 1,238 9.500% 10-01-02 771
Columbia, MD.............................. 1,980 -- 10.750% 07-20-03 --
Oxon Hill, MD............................. 1,702 1,967 6.250% 03-01-04 --
Mechanicsburg, PA (3 Exel properties)
(d)..................................... 25,000 25,000 8.000% 03-20-04 25,000
Brownsville, TX........................... 852 927 8.375% 11-01-04 260
Rockville, MD............................. 1,061 1,183 8.820% 03-01-05 --
Phoenix, AZ (Bull Promissory Note)........ 592 592 6.380% 09-30-05 592
Phoenix, AZ (Bull)........................ 5,692 5,844 8.120% 10-01-05 4,245
Salt Lake City, UT........................ 10,911 12,092 7.870% 10-01-05 --
Laguna Hills, CA.......................... 4,113 4,420 8.375% 02-01-06 1,020
Warren, OH................................ 40,624 -- 7.000% 10-01-07 --
Federal Way, WA........................... 8,635 -- 7.480% 05-11-08 7,655
Anchorage, AK............................. 11,267 -- 7.480% 05-11-08 9,988
Palm Beach Gardens, FL.................... 13,756 -- 7.010% 06-15-08 11,866
Hebron, KY................................ 5,642 -- 7.000% 10-23-08 4,935
Canton, OH................................ 2,523 2,664 9.490% 02-28-09 --
Salt Lake City, UT........................ 21,170 22,401 7.610% 10-01-09 --
Honolulu, HI.............................. 5,901 6,253 10.250% 10-01-10 --
San Diego, CA............................. 4,635 -- 7.500% 01-01-11 3,420
Dallas, TX................................ 22,800 22,800 7.490% 12-31-12 15,961
Lancaster, CA............................. 11,224 -- 7.020% 09-01-13 8,614
Franklin, NC.............................. 2,250 2,279 8.500% 04-01-15 --
-------- -------- ------- --------
Total..................................... $352,900 $219,553 7.650% $235,393
======== ======== ======= ========
</TABLE>
- ---------------
(a) The REMIC Financing is secured by mortgages on 17 Properties.
(b) The Company's $100 million unsecured revolving credit facility, which
replaced the Company's $60 million secured credit facility, bears interest
at 137.5 basis points over LIBOR and has an interest rate period of one,
three or six months, at the option of the Company. The credit facility
contains various leverage, debt service coverage, net worth maintenance and
other customary covenants all of which the Company is in compliance. Due to
these covenants, approximately $6.4 million was available to the Company at
December 31, 1998. In addition, the Company has issued a letter of credit
totaling $2.8 million. The amount of available borrowings can increase by
identifying additional encumbered properties as eligible for the
computation of the borrowing base which supports the credit facility.
(c) The mortgages on the two Tampa, Florida Properties are
cross-collateralized.
(d) The Notes can be exchanged by the holders for the Company's common shares
at $13 per share beginning in the year 2000, subject to adjustment. The
Notes may be redeemed at the Company's option
34
<PAGE> 36
beginning March 2000 at a price of 103.2% of the principal amount,
declining to par after March 2002. The Notes are subordinated to
obligations under the Company's credit facility.
Scheduled principal paydowns of the mortgage notes payable, excluding
borrowings under the credit facility, for the next five years and thereafter are
as follows (in $000's):
<TABLE>
<CAPTION>
YEARS ENDING SCHEDULED
DECEMBER 31, AMORTIZATION BALLOON TOTAL
- ------------ ------------ -------- --------
<S> <C> <C> <C>
1999.............................................. $ 9,608 $ 5,563 $ 15,171
2000.............................................. 10,669 13,093 23,762
2001.............................................. 11,524 1,000 12,524
2002.............................................. 12,303 9,559 21,862
2003.............................................. 12,948 -- 12,948
Thereafter........................................ 60,455 153,557 214,012
-------- -------- --------
$117,507 $182,772 $300,279
======== ======== ========
</TABLE>
(6) SUBORDINATED NOTES PAYABLE
The notes bear interest at 7.75% per annum, payable semi-annually on
January 1 and July 1 of each year, and are due on October 12, 2000. The
Subordinated Notes are redeemable at the Company's option, in whole or in part
at a redemption price equal to 100% of the principal amount plus all accrued and
unpaid interest through the date of redemption.
(7) LEASES
Minimum future rental receipts under noncancellable tenant leases assuming
no new or negotiated leases for the next five years and thereafter are as
follows (in $000's):
<TABLE>
<CAPTION>
YEAR ENDING
DECEMBER 31, AMOUNT
- ------------ --------
<S> <C>
1999........................................................ $ 73,070
2000........................................................ 72,720
2001........................................................ 70,174
2002........................................................ 67,826
2003........................................................ 68,077
Thereafter.................................................. 347,203
--------
$699,070
========
</TABLE>
The Company leases its corporate headquarters for approximately $233,000 per
annum through June 30, 2004.
(8) MINORITY INTERESTS
In conjunction with several of the Company's acquisitions, sellers were
given interests in Partnerships controlled by the Company as a form of
consideration. All of such interests are redeemable at certain times for common
shares on a one-for-one basis. As of December 31, 1998, there were 6,254,769 OP
Units outstanding. These units, subject to certain adjustments through the date
of conversion, have distributions per unit in varying amounts up to $1.20 per
unit.
(9) PREFERRED SHARES
The preferred shares are cumulative and convertible at any time at the
holder's option into common shares on a one-for-one basis and are entitled to
quarterly dividends equal to the greater of $.295 per share or 105% of the
quarterly common shares dividend. Currently the dividend is $.315 per share.
35
<PAGE> 37
During 1997, the Company sold 2,000,000 preferred shares to a single
entity. Based on the market price of the Company's common shares on the dates of
issuance, the Preferred Shares were deemed to have a beneficial conversion
feature equal to the difference between the market price per share and $12.50
per share. This difference, which is non-cash and non-recurring, amounted to
approximately $3.5 million for the year ended December 31, 1997 and has been
recorded as a dividend, with an offset to additional paid-in capital, in the
accompanying statements of changes in shareholders' equity.
The preferred shares may be redeemed by the Company after December 31, 2001
at a premium of 6% over the liquidation preference of $12.50 per share, with
such premium declining to zero on or after December 31, 2011. Each share is
entitled to one vote. In certain instances, including a change of control of the
Company (as defined in the agreement), the holder of the Preferred Shares may
require the Company to redeem its shares at a price equal to $12.75 per share
plus any accrued dividends.
(10) LEGAL PROCEEDINGS
The Company is involved in various legal actions arising in the ordinary
course of business. In the opinion of management, the ultimate disposition of
these matters will not have a material adverse effect on the Company's
consolidated financial position, results of operations or liquidity.
(11) BENEFIT PLANS
The Company maintains a common share option plan pursuant to which
qualified and non-qualified options may be issued. In 1998 the number of options
that can be issued under the plan were increased by 800,000. Options granted
under the plan generally vest over a period of one to four years, expire five
years from date of grant and are exercisable at the market price of the date of
grant.
Share option activity during the periods indicated is as follows:
<TABLE>
<CAPTION>
WEIGHTED-AVERAGE
NUMBER OF EXERCISE PRICE PER
SHARES SHARE
--------- ------------------
<S> <C> <C>
Balance at December 31, 1995............................. 602,500 $10.45
Granted(1)............................................. 370,600 11.56
Exercised(1)........................................... (192,500) 9.15
Forfeited.............................................. (5,300) 11.39
--------- ------
Balance at December 31, 1996............................. 775,300 11.30
Granted................................................ 276,397 12.50
Exercised.............................................. (10,000) 10.09
Forfeited.............................................. (2,500) 14.25
--------- ------
Balance at December 31, 1997............................. 1,039,197 11.62
Granted................................................ 386,600 15.11
Exercised.............................................. (8,230) 10.28
Forfeited.............................................. (7,370) 14.51
--------- ------
Balance at December 31, 1998............................. 1,410,197 $12.58
========= ======
</TABLE>
- ---------------
(1) In 1996, certain officers and employees exchanged existing options for new
options with exercise prices equal to the fair market value of the common
shares at that time. These options are reflected in the amounts exercised
and granted in the table above. The difference between the exercise prices
of the original and the new options, which amounted to $588,000 has been
reflected in general and administrative expenses in the accompanying
financial statements.
At December 31, 1998, the range of exercise prices and weighted-average
remaining contractual life of outstanding options was $9.00 to $15.25 and 2.74
years, respectively. In addition, 989,803 options are still available for grant.
36
<PAGE> 38
At December 31, 1998, 1997 and 1996, the number of options exercisable was
1,107,697, 837,300, and 767,800, respectively, and the weighted-average exercise
price of those options was $11.88, $11.45 and $11.29, respectively.
The per share weighted average fair value of options granted during 1998,
1997 and 1996 were estimated to be $3.46, $3.75 and $2.60, respectively, using a
Black-Scholes option pricing formula. The more significant assumptions
underlying the determination of such fair values include: (i) a risk free
interest rate of 5% in 1998 and 6.5% in 1997 and 1996; (ii) an expected life of
five years; (iii) volatility factors of 18.47%, 17.09% and 16.29%, for 1998,
1997 and 1996 respectively; (iv) and actual dividends paid.
The Company has elected to adopt the disclosure only provisions of SFAS No.
123. Accordingly no compensation cost has been recognized with regard to options
granted in the accompanying consolidated statements of income. If stock based
compensation cost had been recognized based upon the fair value at the date of
grant for options awarded in 1998, 1997 and 1996 the Company's pro forma net
income and pro forma net income per share would have been:
<TABLE>
<CAPTION>
1998 1997 1996
------- ------ ------
<S> <C> <C> <C>
Pro forma net income.................................... $14,737 $8,276 $4,994
Pro forma net income per share..........................
Basic................................................. $ 0.73 $ 0.30 $ 0.52
Diluted............................................... $ 0.73 $ 0.29 $ 0.50
</TABLE>
The Company has a 401(k) retirement savings plan covering all eligible
employees. The Company will match 25% of the first 4% of employee contributions.
In addition, based on its profitability, the Company may make a discretionary
contribution at each fiscal year end to all eligible employees. The matching and
discretionary contributions are subject to vesting under a schedule providing
for 25% annual vesting starting with the first year of employment and 100%
vesting after four years of employment. Approximately $77,000, $80,000 and
$75,000 were contributed in 1998, 1997 and 1996, respectively.
(12) RELATED PARTY TRANSACTIONS
The Company has been granted an option by the LCP Group, L.P. ("LCP"),
exercisable any time, to acquire the general partnership interests currently
owned by LCP in two limited partnerships, Net 1 L.P. and Net 2 L.P.
(collectively, the "Net Partnerships"), which own net leased office, industrial
and retail properties. Under the terms of the option, the Company, subject to
review of any such transaction by the independent members of its Board of
Trustees, may acquire the general partnership interests in either or both of the
Net Partnerships at their fair market value based upon a formula relating to
partnership cash flows, with the Company retaining the option of paying such
fair market value in securities of the Company, units representing interests in
partnerships controlled by the Company or cash (or a combination thereof). The
Chairman of the Company is a partner in LCP.
The Company currently provides administrative and acquisition support to
the Net Partnerships and is reimbursed for the costs of such services. The
reimbursements amounted to $393,000, $279,000 and $197,000 for the years ended
December 31, 1998, 1997 and 1996, respectively, and are shown net of the
Company's general and administrative expenses in the accompanying statements of
income.
The Company also received brokerage commissions, relating to the purchase
and sale of properties, from the Net Partnerships totaling $376,000 in 1998,
which is included in other income in the accompanying statement of income.
In connection with the acquisition of certain properties, the Company
assumed an obligation to pay LCP an aggregate principal amount of $1,778,000 for
rendering services in connection with the original acquisition of the properties
in 1980 and 1981. These properties were acquired by the Company in 1996. Simple
interest is payable monthly from available net cash flow of the respective
original properties on the various unpaid principal portions of the fees, at
annual rates ranging from 12.25% to 19%. Monthly installment payments are
37
<PAGE> 39
to commence at various dates to satisfy principal and current interest payments
as well as any unpaid accrued interest outstanding.
During 1998, the Company issued 1,187,228 OP Units to the Co-Chief
Executive Officers and an affiliate of one of the Co-Chief Executive Officers in
exchange for their interests in certain partnerships and related contractual
obligations.
During 1998, the Company issued 131,000 common shares to two officers in
exchange for notes aggregating $1,998,000 which mature on February 14, 2003,
bear interest at 7.6% per annum and are secured by the common shares issued.
(13) FAIR MARKET VALUE OF FINANCIAL INSTRUMENTS
Cash Equivalents and Restricted Cash
The Company estimates that the fair value approximates carrying value due
to the relatively short maturity of the instruments.
Mortgages, Notes and Subordinated Notes Payables
The Company determines the fair value of these instruments based on a
discounted cash flow analysis using a discount rate that approximates the
current borrowing rates for instruments of similar maturities. Based on this,
the Company has determined that the fair value of these instruments approximates
carrying values.
(14) CONCENTRATION OF RISK
The Company seeks to reduce its operating and leasing risks through
diversification achieved by the geographic distribution of its Properties,
avoiding dependency on a single property and the creditworthiness of its
tenants.
For each of the years in the three year period ended December 31, 1998 the
following tenants represented 10% or greater of rental revenue:
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Northwest Pipeline Corp..................................... 14% 20% 16%
Ross Stores, Inc............................................ -- -- 10%
</TABLE>
The Ross Store, Inc. property was sold to the tenant in 1998.
(15) SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES
During 1998, in connection with the acquisition of certain properties, the
Company assumed $44.2 million in mortgage indebtedness as partial satisfaction
of the purchase price.
During 1998, in connection with the acquisition of certain properties, the
Company issued $28.8 million in OP Units as partial satisfaction of the purchase
price. The issuance of these OP Units have been recorded as minority interest in
the accompanying consolidated balance sheets.
During 1998, holders of an aggregate of 525,433 partnership units redeemed
such units for common shares of the Company. This redemption resulted in an
increase in shareholders' equity and a corresponding decrease in minority
interest of $5.65 million.
During 1998, the Company issued 131,000 common shares, at the current
market price, to two officers in exchange for notes aggregating $1,998,000 which
mature on February 14, 2003, bear interest at 7.6% per annum and are secured by
the common shares issued.
During 1997, the Company issued 1,284,725 common shares in exchange for all
the shares of another company. The Company acquired three properties valued at
$35.1 million less the $15.3 million of mortgage indebtedness assumed.
38
<PAGE> 40
During 1997, in connection with a property acquisition, the Company assumed
approximately $5.9 million of first mortgage financing and issued a $600,000
note to the seller.
During 1997, in connection with an acquisition of properties involving a
partnership, the Company issued $6 million in OP Units as partial satisfaction
of the purchase price. The issuance of these OP Units have been recorded as
minority interest in the accompanying consolidated financial statements.
During 1996, the Company completed acquisitions whereby six properties were
acquired in exchange for OP Units. Total assets acquired and total liabilities
assumed in the exchanges were $79.1 million and $56.9 million, respectively.
(16) UNAUDITED QUARTERLY FINANCIAL DATA (IN $000'S, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-------------------------------------
MARCH 31, JUNE 30,
----------------- ----------------
1998 1997 1998 1997
------- ------ ------ ------
<S> <C> <C> <C> <C>
Revenues....................................... $13,980 9,824 14,994 10,638
Income before extraordinary item............... $ 4,062 1,566 3,437 1,770
Net income..................................... $ 4,062 1,510 3,437 304
Income (loss) per common share:
Before extraordinary item
Basic..................................... $ 0.21 (0.01) 0.17 0.14
Diluted................................... $ 0.20 (0.01) 0.17 0.13
Net income (loss)
Basic..................................... $ 0.21 (0.02) 0.17 (0.01)
Diluted................................... $ 0.20 (0.02) 0.17 (0.01)
</TABLE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-------------------------------------
SEPTEMBER 30, DECEMBER 31,
----------------- ----------------
1998 1997 1998 1997
------- ------ ------ ------
<S> <C> <C> <C> <C>
Revenues....................................... $17,155 11,405 18,988 11,702
Income before extraordinary item............... $ 4,131 5,492 4,107 2,954
Net income..................................... $ 4,131 3,825 4,107 2,954
Income (loss) per common share:
Before extraordinary item
Basic..................................... $ 0.21 0.40 0.21 0.04
Diluted................................... $ 0.20 0.37 0.20 0.04
Net income
Basic..................................... $ 0.21 0.27 0.21 0.04
Diluted................................... $ 0.20 0.27 0.20 0.04
</TABLE>
The sum of the quarterly income (loss) per common share amounts may not
equal the full year amounts primarily because the computations of the weighted
average number of common shares outstanding for each quarter and the full year
are made independently.
(17) SUBSEQUENT EVENTS (UNAUDITED)
The Company borrowed an additional $3 million on its unsecured line of
credit at an interest rate of 6.3125%.
The Company purchased a property in Henderson, North Carolina leased to
Corporate Express Office Products, Inc. for $7.3 million. The lease, which
expires January 31, 2014, provides for annual revenues of $765,000.
The Company obtained a $2.18 million mortgage on its property in Baton
Rouge, Louisiana. The mortgage which bears interest at 7.375% provides for
annual debt service payments of approximately $202,000 through February 16, 2009
when a balloon payment of approximately $1.5 million is due.
39
<PAGE> 41
LEXINGTON CORPORATE PROPERTIES TRUST AND CONSOLIDATED SUBSIDIARIES
REAL ESTATE AND ACCUMULATED DEPRECIATION AND AMORTIZATION
SCHEDULE III ($000)
INITIAL COST TO COMPANY AND GROSS AMOUNT AT WHICH CARRIED AT END OF YEAR(A)
<TABLE>
<CAPTION>
LAND ACCUMULATED
AND BUILDINGS DEPRECIATION
LAND AND AND
DESCRIPTION LOCATION ENCUMBRANCES ESTATES IMPROVEMENTS TOTAL AMORTIZATION
----------- ------------------------ ------------ ------- ------------ -------- -------------
<S> <C> <C> <C> <C> <C> <C>
Warehouse & Manufacturing....... Modesto, CA $ 2,101 $ 257 $ 3,809 $ 4,066 $ 1,171
Office.......................... Southington, CT 8,650 3,240 20,440 23,680 7,481
Research & Development.......... Glendale, AZ -- 4,996 24,392 29,388 9,868
Retail/Health Club.............. Countryside, IL 2,381 628 3,722 4,350 1,462
Retail/Health Club.............. Voorhees NJ 3,011 577 4,820 5,397 1,789
Retail/Health Club.............. DeWitt, NY 1,821 445 3,043 3,488 1,112
Warehouse & Distribution........ Mansfield, OH 3,291 120 4,597 4,717 1,494
Industrial...................... Marshall, MI 2,206 33 3,378 3,411 1,189
Industrial...................... Marshall, MI 840 14 926 940 327
Retail.......................... Newport, OR 6,162 1,400 7,270 8,670 2,392
Office & Warehouse.............. Memphis, TN 6,652 1,053 10,908 11,961 2,966
Warehouse & Distribution........ Mechanicsburg, PA 10,154 1,439 13,987 15,426 2,561
Office & Warehouse.............. Tampa, FL 4,290 1,389 7,629 9,018 2,284
Retail.......................... Klamath Falls, OR 7,003 727 9,160 9,887 2,471
Office.......................... Tampa, FL 5,697 1,900 9,736 11,636 2,538
Warehouse & Industrial.......... Jacksonville, FL -- 157 3,034 3,191 808
Retail.......................... Sacramento, CA 2,346 885 2,705 3,590 922
Office.......................... Phoenix, AZ 5,538 2,804 13,921 16,725 3,509
Retail.......................... Reno, NV 2,031 1,200 1,904 3,104 631
Retail.......................... Las Vegas, NV 1,821 900 1,759 2,659 581
Retail.......................... Rockville, MD 1,061 -- 1,784 1,784 372
Retail.......................... Oxon Hill, MD 1,702 403 2,765 3,168 450
Retail.......................... Brownsville, TX 852 -- 1,242 1,242 229
Retail.......................... Laguna Hills, CA 4,113 255 5,028 5,283 735
Retail.......................... Riverdale, GA -- 363 2,233 2,596 167
Retail/Health Club.............. Canton, OH 2,523 602 3,819 4,421 286
Office.......................... Salt Lake City, UT 32,081 -- 55,404 55,404 5,613
Retail.......................... Jacksonville, AL -- 286 1,763 2,049 115
Manufacturing................... Franklin, NC 2,250 386 3,062 3,448 153
Industrial...................... Plymouth, MI -- 1,461 4,868 6,329 243
Industrial...................... Oberlin, OH 2,235 276 4,515 4,791 226
Retail.......................... Tulsa, OK -- 447 2,432 2,879 265
Retail.......................... Clackamas, OR -- 523 2,847 3,370 311
Retail.......................... Lynwood, WA -- 488 2,658 3,146 290
Industrial...................... Houston, TX -- 217 3,745 3,962 329
Retail.......................... Honolulu, HI 5,901 -- 11,147 11,147 903
Industrial...................... Cottondale, AL -- 720 2,190 2,910 103
Warehouse....................... New Kingston, PA
(Silver Springs) 5,498 674 5,360 6,034 240
Warehouse....................... New Kingston, PA
(Cumberland) 11,250 1,380 10,963 12,343 491
Warehouse....................... Mechanicsburg, PA
(Hampden IV) 8,252 1,012 8,039 9,051 360
<CAPTION>
USEFUL LIFE
COMPUTING
DEPRECIATION IN
LATEST INCOME
DATE DATE STATEMENTS
DESCRIPTION ACQUIRED CONSTRUCTED (YEARS)
----------- ---------- ----------- -----------------------
<S> <C> <C> <C>
Warehouse & Manufacturing....... Sept. 1986 1970 & 1976 40 & 12
Office.......................... Oct. 1986 1983 40 & 12
Research & Development.......... Nov. 1986 1985 40 & 12
Retail/Health Club.............. Jul. 1987 1987 40 & 12
Retail/Health Club.............. Jul. 1987 1987 40 & 12
Retail/Health Club.............. Aug. 1987 1977 & 1987 40 & 12
Warehouse & Distribution........ Jul. 1987 1970 40, 20 & 12
Industrial...................... Aug. 1987 1968 & 1972 40, 20 & 12
Industrial...................... Aug. 1987 1979 40, 20 & 12
Retail.......................... Sept. 1987 1986 40, 20 & 12
Office & Warehouse.............. Feb. 1988 1987 40
Warehouse & Distribution........ Oct. 1990 1985 & 1991 40
Office & Warehouse.............. Nov. 1987 1986 40 & 20
Retail.......................... Mar. 1988 1986 40
Office.......................... Jul. 1988 1986 40
Warehouse & Industrial.......... Jul. 1988 1958 & 1969 40 & 20
Retail.......................... Oct. 1988 1988 40, 20 & 12
Office.......................... Nov. 1988 1960 & 1979 40
Retail.......................... Dec. 1988 1988 40, 20 & 12
Retail.......................... Dec. 1988 1988 40, 20 & 12
Retail.......................... Aug. 1995 1977 22.375, 16.583 & 15.583
Retail.......................... Aug. 1995 1976 21.292
Retail.......................... Aug. 1995 1973 18.542
Retail.......................... Aug. 1995 1974 20 & 20.5
Retail.......................... Dec. 1995 1985 40
Retail/Health Club.............. Dec. 1995 1987 40
Office.......................... May 1996 1982 25.958
Retail.......................... May 1996 1982 40
Manufacturing................... Dec. 1996 1996 40
Industrial...................... Dec. 1996 1996 40
Industrial...................... Dec. 1996 1996 40
Retail.......................... Dec. 1996 1981 23.583 & 13.583
Retail.......................... Dec. 1996 1981 23.583 & 13.583
Retail.......................... Dec. 1996 1981 23.583 & 13.583
Industrial...................... Dec. 1996 1981 24.5 & 14.5
Retail.......................... Dec. 1996 1980 24.33
Industrial...................... Feb. 1997 1996 40
Warehouse.......................
Mar. 1997 1981 40
Warehouse.......................
Mar. 1997 1989 40
Warehouse.......................
Mar. 1997 1985 40
</TABLE>
40
<PAGE> 42
LEXINGTON CORPORATE PROPERTIES TRUST AND CONSOLIDATED SUBSIDIARIES
REAL ESTATE AND ACCUMULATED DEPRECIATION AND AMORTIZATION
SCHEDULE III ($000) -- (CONTINUED)
<TABLE>
<CAPTION>
LAND ACCUMULATED
AND BUILDINGS DEPRECIATION
LAND AND AND
DESCRIPTION LOCATION ENCUMBRANCES ESTATES IMPROVEMENTS TOTAL AMORTIZATION
----------- ------------------------ ------------ ------- ------------ -------- -------------
<S> <C> <C> <C> <C> <C> <C>
Office/Research & Development... San Diego, CA 4,635 693 7,014 7,707 285
Office/Research & Development... Marlborough, MA -- 1,707 13,834 15,541 504
Office.......................... Phoenix, AZ 6,284 1,872 9,118 10,990 332
Office.......................... Dallas, TX 22,800 3,582 29,063 32,645 938
Warehouse....................... Waterloo, IA 4,468 1,025 8,296 9,321 251
Office/Research & Development... Milipitas, CA -- 3,542 18,603 22,145 465
Industrial...................... Gordonsville, TN 1,158 52 3,325 3,377 96
Office.......................... Decatur, GA -- 975 13,677 14,652 342
Office.......................... Richmond, VA 13,093 -- 27,282 27,282 846
Industrial...................... Bessemer, AL 1,000 664 4,238 4,902 126
Office/Warehouse................ Bristol, PA -- 2,508 10,031 12,539 188
Office.......................... Hebron, KY 5,642 1,615 6,462 8,077 121
Office.......................... Livonia, MI -- 1,554 6,219 7,773 117
Research & Development.......... Livonia, MI -- 1,733 6,936 8,669 130
Retail.......................... Federal Way, WA 8,635 2,749 11,015 13,764 176
Retail.......................... Anchorage, AK 11,267 3,537 14,169 17,706 226
Industrial/Warehouse............ Columbia, SC -- 636 3,608 4,244 44
Office.......................... Palm Beach Gardens, FL 13,756 3,960 15,870 19,830 249
Warehouse/Distribution.......... Lancaster, CA 11,224 2,028 13,117 15,145 174
Office.......................... Florence, SC -- 3,012 12,067 15,079 151
Industrial...................... Auburn Hills, MI -- 2,788 11,169 13,957 122
Warehouse/Distribution.......... Warren, OH 40,624 10,231 51,239 61,470 742
Warehouse/Distribution.......... Baton Rouge, LA -- 685 2,746 3,431 14
Retail.......................... Columbia, MD 1,980 976 3,910 4,886 --
-------- ------- -------- -------- --------
Total $300,279 $85,781 $590,012 $675,793 $ 66,076
======== ======= ======== ======== ========
<CAPTION>
USEFUL LIFE
COMPUTING
DEPRECIATION IN
LATEST INCOME
DATE DATE STATEMENTS
DESCRIPTION ACQUIRED CONSTRUCTED (YEARS)
----------- ---------- ----------- -----------------------
<S> <C> <C> <C>
Office/Research & Development... May 1997 1989 40
Office/Research & Development... Jul. 1997 1960 & 1988 40
Office.......................... Jul. 1997 1985 & 1994 40
Office.......................... Sept. 1997 1986 40
Warehouse....................... Oct. 1997 1996 & 1997 40
Office/Research & Development... Dec. 1997 1985 40
Industrial...................... Dec. 1997 1983 & 1985 34.75
Office.......................... Dec. 1997 1983 40
Office.......................... Dec. 1997 1990 32.25
Industrial...................... Dec. 1997 1990 33.75
Office/Warehouse................ Mar. 1998 1982 40
Office.......................... Mar. 1998 1987 40
Office.......................... Mar. 1998 1987 & 1988 40
Research & Development.......... Mar. 1998 1987 & 1988 40
Retail.......................... May 1998 1992 40
Retail.......................... May 1998 1992 40
Industrial/Warehouse............ May 1998 1968 & 1998 40
Office.......................... May 1998 1996 40
Warehouse/Distribution.......... Jun. 1998 1998 40
Office.......................... Jul. 1998 1998 40
Industrial...................... Jul. 1998 1989 & 1998 40
Warehouse/Distribution.......... Aug. 1998 1982 40
Warehouse/Distribution.......... Oct. 1998 1998 40
Retail.......................... Dec. 1998 1983 40
Total
</TABLE>
- ---------------
(A) The initial cost includes the purchase price paid by the Company and
acquisition fees and expenses. The total cost basis of the Company's
Properties at December 31, 1998 for Federal income tax purposes was $458
million.
Reconciliation of real estate owned
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Balance at the beginning of the year.................... $467,606 $340,669 $244,223
Additions during year................................... 208,187 179,257 96,446
Properties sold during year............................. -- (21,476) --
Property reclassed to held for sale..................... -- (30,844) --
-------- -------- --------
Balance at end of year.................................. $675,793 $467,606 340,669
======== ======== ========
</TABLE>
Reconciliation of accumulated depreciation and amortization:
<TABLE>
<S> <C> <C> <C>
Balance at beginning of year............................ $ 50,993 $ 51,343 $ 43,716
Depreciation and amortization expense................... 15,083 10,608 7,627
Accumulated depreciation of properties sold during
year................................................. -- (3,631) --
Accumulated depreciation of property reclassed to held
for sale............................................. -- (7,327) --
-------- -------- --------
Balance at end of year.................................. $ 66,076 $ 50,993 $ 51,343
======== ======== ========
</TABLE>
41
<PAGE> 43
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III.
ITEM 10. TRUSTEES AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information regarding trustees and executive officers of the Company
required to be furnished pursuant to this item is set forth in Item 4A of this
report.
ITEM 11. EXECUTIVE COMPENSATION
The information required to be furnished pursuant to this item will be set
forth under the caption "Compensation of Executive Officers" in the Proxy
Statement, and is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required to be furnished pursuant to this item will be set
forth under the captions "Principal Security Holders" and "Share Ownership of
Trustees and Executive Officers" in the Proxy Statement, and is incorporated
herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required to be furnished pursuant to this item will be set
forth under the caption "Election of Trustees -- Certain Relationships and
Related Transactions" in the Proxy Statement, and is incorporated herein by
reference.
Note, the Definitive Proxy Statement will be filed with the Securities and
Exchange Commission on or about April 16, 1999.
PART IV.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
(a)(1) Financial Statements........................................ 25-39
(2) Financial Statement Schedule................................ 40-41
(3) Exhibits
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
- ----------- -------
<C> <S> <C>
2.1 -- Form of Agreement and Plan of Merger by and among Lexington
Corporate Properties, Inc. (the "Company"), Lepercq
Corporate Income Fund L.P. ("LCIF I") and Lex M-1, L.P.
(filed as Appendix C-I to the Company's Registration
Statement of Form S-4 (File No. 33-66858) (the "Form S-4"))*
2.2 -- Form of Agreement and Plan of Merger by and among the
Company, Lepercq Corporate Income Fund II L.P. ("LCIF II"),
and Lex M-2, L.P. (filed as Appendix C-II to the Form S-4)*
2.3 -- Form of Agreement and Articles of Merger between the Company
and Lexington Corporate Properties -- Maryland, Inc. (filed
as Exhibit 2.3 to Report on 10-K for year ended December 31,
1993 (the "1993 10-K"))*
2.4 -- Agreement and Plan of Merger between the Company and
Lexington Corporate Properties Trust (filed as Exhibit 2.1
to Form 8-K filed 1-16-98.)*
3.1 -- Declaration of Trust of the Company, dated December 31, 1997
(filed as Exhibit 3.1 to Form 8K filed 1-16-98)*
</TABLE>
42
<PAGE> 44
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
- ----------- -------
<C> <S> <C>
3.2 -- By-Laws of the Company (filed as Exhibit 3.2 to Form 10-K
filed 3-31-98)*
4.1 -- Specimen of Common Shares Certificate of the Trust (filed as
Exhibit 3.2 to Form 10-K filed 3-31-98)*
4.2 -- Form of Indenture between the Company and The Bank of New
York, as Trustee, including the form of 7.75% Subordinated
Note due 2000 (filed as Exhibit 4.2 to the Form S-4)*
10.8 -- Form of 1994 Outside Director Shares Plan of the Company
(filed as Exhibit 10.8 to 1993 10-K)*
10.24 -- Class A Mortgage Note to Pacific Mutual Life Insurance
Company and Lexington Mortgage Company dated May 19, 1995 in
the amount of $34,000,000 (filed as Exhibit 10.24 to Report
on 10-K for year ended December 31, 1995 (the "1995 10-K"))*
10.25 -- Class B Mortgage Note to Pacific Mutual Life Insurance
Company and Lexington Mortgage Company dated May 19, 1995 in
the amount of $18,500,000 (filed as Exhibit 10.25 to the
1995 10-K)*
10.26 -- Class C Mortgage Note to Pacific Mutual Life Insurance
Company and Lexington Mortgage Company dated May 19, 1995 in
the amount of $17,500,000 (filed as Exhibit 10.26 to the
1995 10-K)*
10.28 -- Indenture of Mortgage, Deed of Trust, Security Agreement,
Financing Statement, Fixture Filing and Assignment of
Leases, Rents and Security Deposits to First American Title
Insurance Company and Pacific Mutual Life Insurance Company
and Lexington Mortgage Company dated May 19, 1995 (filed as
Exhibit 10.28 to the 1995 10-K)*
10.29 -- Assignment of Leases, Rents, and Security Deposits to
Pacific Mutual Life Insurance Company and Lexington Mortgage
Company dated May 19, 1995 (filed as Exhibit 10.29 to the
1995 10-K)*
10.30 -- Cash Collateral Account, Security, Pledge and Assignment
Agreement with the Bank of New York, as agent and Pacific
Mutual Life Insurance Company and Lexington Mortgage Company
dated May 19, 1995 (filed as Exhibit 10.30 to the 1995
10-K)*
10.31 -- Trust and Servicing Agreement with Pacific Mutual Life
Insurance Company, LaSalle National Bank and ABN AMRO Bank
N.V. dated May 19, 1995 (filed as Exhibit 10.31 to the 1995
10-K)*
10.33 -- Investment Agreement dated as of December 31, 1996 with Five
Arrows Realty Securities L.L.C. *
10.34 -- Operating Agreement dated as of January 21, 1997 with Five
Arrows Realty Securities L.L.C.*
10.35 -- Articles Supplementary Classifying 2,000,000 shares of
Preferred Shares as Class A Senior Cumulative Convertible
Preferred Shares and 2,000,000 shares of Excess Shares as
Excess Class A Preferred Shares of the Company*
10.37 -- Unsecured Revolving Credit Agreement with Fleet National
Bank as administrative agent for itself and lenders dated
July 22, 1998 in the amount of $100,000,000.
12 -- Statement of Computation of Ratio of Earnings to Fixed
Charges (filed as Exhibit 12 to the Form S-4)*
21 -- List of Subsidiaries of the Company (filed as Exhibit 21 to
Form 10-K filed 3-31-98)*
23 -- Consent of KPMG LLP
27 -- Financial Data Schedule as of and for the year ended
December 31, 1998
</TABLE>
- ---------------
* Incorporated by reference.
(b) Reports on Form 8-K and Form 8-K/A
None.
43
<PAGE> 45
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
LEXINGTON CORPORATE PROPERTIES TRUST
BY: /s/ E. ROBERT ROSKIND
------------------------------------
E. Robert Roskind
Chairman
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the Company
and in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ E. ROBERT ROSKIND Chairman of the Board of Trustees and Co-Chief
- --------------------------------------------------- Executive Officer
E. Robert Roskind
/s/ RICHARD J. ROUSE Vice Chairman of the Board of Trustees and
- --------------------------------------------------- Co-Chief Executive Officer
Richard J. Rouse
/s/ T. WILSON EGLIN President and Chief Operating Officer and
- --------------------------------------------------- Trustee
T. Wilson Eglin
/s/ PATRICK CARROLL Chief Financial Officer and Treasurer
- ---------------------------------------------------
Patrick Carroll
/s/ PAUL R. WOOD Vice President, Chief Accounting Officer and
- --------------------------------------------------- Secretary
Paul R. Wood
/s/ CARL D. GLICKMAN Trustee
- ---------------------------------------------------
Carl D. Glickman
/s/ KEVIN W. LYNCH Trustee
- ---------------------------------------------------
Kevin W. Lynch
/s/ JOHN D. MCGURK Trustee
- ---------------------------------------------------
John D. McGurk
/s/ SETH M. ZACHARY Trustee
- ---------------------------------------------------
Seth M. Zachary
</TABLE>
DATE: March 5, 1999
44
<PAGE> 1
$100,000,000
UNSECURED REVOLVING CREDIT AGREEMENT
among
LEXINGTON CORPORATE PROPERTIES TRUST, LEPERCQ CORPORATE
INCOME FUND, L.P., LEPERCQ CORPORATE INCOME FUND II L.P.,
UNION HILLS ASSOCIATES, LEX LP-I, INC., LEX GP-I, INC.,
PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP, and SAVANNAH
WATERFRONT HOTEL, LLC, Jointly and Severally;
FLEET NATIONAL BANK;
OTHER LENDERS WHICH MAY BECOME PARTIES
TO THIS AGREEMENT;
FLEET NATIONAL BANK, as Administrative Agent
FIRST UNION NATIONAL BANK AND KEYBANK, NATIONAL
ASSOCIATION, as Documentation Agents
Dated as of July 22, 1998
<PAGE> 2
TABLE OF CONTENTS
SECTION 1. DEFINITIONS.........................................................1
1.1. DEFINED TERMS..........................................................1
1.2. COMPUTATION OF TIME PERIODS............................................1
1.3. ACCOUNTING TERMS.......................................................2
1.4. OTHER TERMS............................................................2
SECTION 2. AMOUNT AND TERMS OF LOANS...........................................2
2.1. LOAN FACILITY..........................................................2
2.2. AUTHORIZED AGENTS......................................................3
2.3. PROMISE TO REPAY; EVIDENCE OF INDEBTEDNESS; BORROWERS' OBLIGATIONS;....4
2.4 JOINT AND SEVERAL LIABILITY OF THE BORROWERS AND GUARANTORS............7
2.5. PROCEDURE FOR BORROWING UNDER THE REVOLVING CREDIT FACILITY............9
2.6. COMPETITIVE BID LOANS.................................................11
2.7. INTEREST ON THE LOANS AND OTHER OBLIGATIONS...........................17
2.8. DURATION AND DETERMINATION OF INTEREST PERIOD; DETERMINATION OF
INTEREST RATE; CONTINUATION/CONVERSION OF LOANS.......................19
2.9. OPTIONAL PREPAYMENTS; MANDATORY PREPAYMENTS...........................20
2.10. COMPUTATION OF INTEREST AND FEES......................................21
2.11. PAYMENTS..............................................................21
2.12. USE OF PROCEEDS AND LETTERS OF CREDIT.................................26
2.13. INCREASED COSTS.......................................................26
2.14. CHANGE IN LAW RENDERING EURODOLLAR LOANS UNLAWFUL.....................28
2.15. EURODOLLAR AVAILABILITY...............................................28
2.16. INDEMNITIES...........................................................29
2.17. FEES..................................................................29
<PAGE> 3
2.18. USURY.................................................................31
2.19. UNENCUMBERED ELIGIBLE PROPERTIES......................................31
2.20. WITHDRAWAL OF UNENCUMBERED ELIGIBLE PROPERTY..........................35
2.21 EXCLUSION OF UNENCUMBERED ELIGIBLE PROPERTIES.........................36
SECTION 3. LETTERS OF CREDIT..................................................36
3.1. LETTERS OF CREDIT.....................................................36
SECTION 4. REPRESENTATIONS AND WARRANTIES.....................................42
4.1. FINANCIAL CONDITION...................................................42
4.2. NO MATERIAL ADVERSE EFFECT............................................42
4.3. EXISTENCE; BORROWER'S AND GUARANTOR'S COMPLIANCE WITH LAW.............42
4.4. POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.........................43
4.5. NO LEGAL BAR..........................................................43
4.6. NO MATERIAL LITIGATION................................................43
4.7. NO DEFAULT............................................................43
4.8. OWNERSHIP OF PROPERTY; LIENS..........................................43
4.9. TAXES.................................................................45
4.10. FEDERAL REGULATIONS...................................................45
4.11. ERISA.................................................................45
4.12. STATUS AS REIT........................................................46
4.13. INVESTMENT COMPANY ACT................................................46
4.14. SUBSIDIARIES; OWNERSHIP OF CAPITAL STOCK AND PARTNERSHIP INTERESTS....46
4.16. POLLUTION; HAZARDOUS MATERIALS........................................47
4.17. DECLARATION OF TRUST, PARTNERSHIP AGREEMENT, ETC......................47
4.18. DISCLOSURES...........................................................47
4.18. YEAR 2000.............................................................48
4.19 GUARANTORS............................................................48
ii
<PAGE> 4
SECTION 5. CONDITIONS PRECEDENT...............................................48
5.1 CONDITIONS TO LOANS...................................................48
5.2. CONDITIONS PRECEDENT TO ALL SUBSEQUENT LOANS..........................50
SECTION 6. AFFIRMATIVE COVENANTS..............................................52
6.1. FINANCIAL STATEMENTS..................................................52
6.2. CERTIFICATES; OTHER INFORMATION.......................................53
6.3 PUNCTUAL PAYMENT......................................................54
6.4. PAYMENT OF OTHER OBLIGATIONS..........................................54
6.5. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE......................54
6.6. LEASES................................................................54
6.7. MAINTENANCE OF UNENCUMBERED ELIGIBLE PROPERTY, INSURANCE..............54
6.8. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS................55
6.9. NOTICES...............................................................55
6.10. REIT REQUIREMENTS.....................................................56
6.11. ENVIRONMENTAL ACTIONS.................................................56
6.12. CHANGES IN GAAP.......................................................57
6.13. NYSE LISTING..........................................................57
6.14. OBLIGATIONS IN EXCESS OF MAXIMUM AVAILABILITY........................57
6.15. MANAGEMENT OF BORROWER AND UNENCUMBERED ELIGIBLE PROPERTY.............58
6.16. SUBORDINATION OF PAYABLES TO AFFILIATES...............................58
6.17. SUBORDINATED DEBT.....................................................58
6.18. ERISA NOTICES.........................................................58
6.19. ERISA COMPLIANCE......................................................60
6.20. PAYMENT OF TAXES AND CLAIMS...........................................60
6.21. INTER-BORROWER OR GUARANTOR ADVANCES OF LOAN PROCEEDS.................60
6.22. SOLVENCY OF GUARANTORS................................................60
6.23. NO AMENDMENTS TO CERTAIN DOCUMENTS....................................60
iii
<PAGE> 5
6.24. YEAR 2000.............................................................60
SECTION 7. NEGATIVE COVENANTS.................................................60
7.1. FINANCIAL COVENANTS...................................................61
7.2 COVENANT CALCULATIONS.................................................62
7.3. RESTRICTED PAYMENTS...................................................63
7.4. MERGER; SALE OF ASSETS; TERMINATION AND OTHER ACTIONS.................63
7.5. TRANSACTIONS WITH AFFILIATES..........................................63
7.6. ACCOUNTING CHANGES....................................................64
7.7. NO LIENS..............................................................64
7.8. FISCAL YEAR...........................................................64
7.9. CHIEF EXECUTIVE OFFICE................................................64
7.10. SELF-DIRECTED REIT....................................................64
7.11. LIMITATIONS ON CERTAIN ACTIVITIES.....................................64
7.12. DISTRIBUTIONS.........................................................64
7.13. ERISA.................................................................64
7.14 COMPLIANCE WITH ENVIRONMENTAL LAWS....................................65
SECTION 8. EVENTS OF DEFAULT..................................................65
8.1. EVENTS OF DEFAULT.....................................................65
8.2 REMEDIES..............................................................67
8.3. ANNULMENT OF ACCELERATION.............................................68
8.4. COOPERATION BY EACH BORROWER AND GUARANTOR............................68
SECTION 9. THE AGENT..........................................................68
9.1. APPOINTMENT...........................................................68
9.2. NATURE OF DUTIES......................................................69
9.3. RIGHT TO REQUEST INSTRUCTIONS.........................................69
9.4. RIGHTS, EXCULPATION, ETC..............................................69
iv
<PAGE> 6
9.5. RELIANCE..............................................................70
9.6. INDEMNIFICATION.......................................................70
9.7. AGENT INDIVIDUALLY....................................................71
9.8. SUCCESSOR AGENTS......................................................71
9.9. RELATIONS AMONG THE LENDERS...........................................72
9.10 CONSENT AND APPROVALS; AGENCY PROVISIONS RELATING TO UNENCUMBERED
ELIGIBLE PROPERTIES...................................................72
9.11. NOTICE OF EVENTS OF DEFAULT...........................................73
9.12. RATABLE SHARING.......................................................73
9.13. DEFAULTING LENDERS....................................................74
9.14. PURCHASING OF DEFAULTING LENDER'S PRO RATA SHARE......................74
SECTION 10. GENERAL...........................................................75
10.1. ASSIGNMENTS AND PARTICIPATIONS........................................75
10.2. AMENDMENTS AND WAIVERS................................................78
10.3 MARSHALLING; PAYMENTS SET ASIDE.......................................79
10.4 LIMITATION OF LIABILITY...............................................80
10.5 COUNTERPARTS; EFFECTIVENESS; INCONSISTENCIES..........................80
10.6 DISCLAIMER BY LENDER..................................................80
10.7 CHOICE OF LAW.........................................................81
10.8 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; ETC.................81
10.9 NOTICES; CERTAIN PAYMENTS.............................................82
10.10 NO WAIVERS; CUMULATIVE REMEDIES; ENTIRE AGREEMENT; HEADINGS...........83
10.11 SURVIVAL..............................................................84
10.12 PAYMENT OF EXPENSES AND TAXES.........................................84
10.13 FURTHER ASSURANCES....................................................85
10.14 NO BROKERS............................................................85
10.15 CONFIDENTIALITY.......................................................85
10.16 SET-OFFS..............................................................85
v
<PAGE> 7
10.17 SYNDICATION...........................................................86
SECTION 11. THE BORROWERS' REPRESENTATIVE.....................................86
11.1. APPOINTMENT OF BORROWERS' REPRESENTATIVE..............................86
EXHIBITS
EXHIBIT A - DEFINITIONS
EXHIBIT B - FORM OF NOTE
EXHIBIT C - FORM OF NOTICE OF BORROWING
EXHIBIT D - FORM OF CERTIFICATE OF UNENCUMBERED ELIGIBLE PROPERTIES;
MAXIMUM AVAILABILITY AND CURRENT AVAILABILITY
EXHIBIT E FORM OF CERTIFICATE OF TOTAL DEBT TO CAPITALIZED VALUE
EXHIBIT F FORM OF COMPETITIVE BID NOTE
EXHIBIT G FORM OF COMPETITIVE BID QUOTE REQUEST
EXHIBIT H FORM OF INVITATION FOR COMPETITIVE BID QUOTES
EXHIBIT I FORM OF COMPETITIVE BID QUOTES
EXHIBIT J FORM OF ACCEPTANCE OR NON-ACCEPTANCE OF COMPETITIVE BID
QUOTE
EXHIBIT K- FORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT L - LIST OF ENVIRONMENTAL REPORTS
EXHIBIT M- RENT ROLL
EXHIBIT N - ORGANIZATIONAL STRUCTURE AND RELATED MATTERS
EXHIBIT O- CERTIFICATE OF COVENANT COMPLIANCE
EXHIBIT P- FORM OF TENANT ESTOPPEL CERTIFICATE
EXHIBIT Q- ERISA MATTERS
EXHIBIT R - FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT S FORM OF GUARANTY
SCHEDULES
SCHEDULE 1 INITIAL UNSECURED ELIGIBLE PROPERTIES AND THEIR OWNERS
vi
<PAGE> 8
UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF JULY 22, 1998
This UNSECURED REVOLVING CREDIT AGREEMENT (the "AGREEMENT") is made as of
the 22nd day of July 1998, by and among LEXINGTON CORPORATE PROPERTIES TRUST
("LEXINGTON"), LEPERCQ CORPORATE INCOME FUND L.P. ("LCIF"), LEPERCQ CORPORATE
INCOME FUND II L.P. ("LCIFII"), UNION HILLS ASSOCIATES ("UNION HILLS"), LEX
LP-I, INC. ("LLP-I"), LEX GP-I, INC. ("LGP-I"), PHOENIX HOTEL ASSOCIATES LIMITED
PARTNERSHIP, ("PHOENIX") AND SAVANNAH WATERFRONT HOTEL, LLC ("SAVANNAH"),
jointly and severally (collectively, the "BORROWERS" and individually, a
"BORROWER") acting by and through LEXINGTON CORPORATE PROPERTIES TRUST
("BORROWERS' REPRESENTATIVE"); FLEET NATIONAL BANK, a national banking
association ("FLEET"), the institutions from time to time who are a party
hereto, (whether by execution of this Agreement or an Assignment and Acceptance
Agreement) (individually, a "LENDER" and collectively, the "LENDERS") and FLEET
NATIONAL BANK as administrative agent for itself and the Lenders (in such
capacity, together with its successors and assigns in such capacity, the
"AGENT").
WHEREAS, the Borrowers desire to obtain a separate Revolving Credit
Commitment from each Lender pursuant to which such Lender will make Loans (as
hereinafter defined) to and for the benefit of one or more of the Borrowers in
an amount not to exceed such Lender's Pro Rata Share (as hereinafter defined) in
a maximum aggregate outstanding principal amount not to exceed $100,000,000 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:
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
<PAGE> 9
(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. LOAN 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 and to consider making Competitive Bid Loans in Dollars 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 Maximum Availability at
such time. All Revolving Credit 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 Revolving
Loan Credit 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.
(b) REVOLVING CREDIT TERMINATION DATE. The Revolving Credit
Commitment shall terminate, and all outstanding Obligations shall be paid in
full 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' Representative 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 November
1st of the year preceding the Revolving Credit Termination Date and no later
than January 31st of the calendar year in which the then-existing Revolving
Credit Termination Date occurs. The then-existing Revolving Credit Termination
Date shall be extended for additional two (2) year periods only if (i) Agent and
such number of Lenders whose Revolving Credit Commitment (as increased, if
applicable) equal to at least $60,000,000 consent in writing to such extension
no later than April 1st of the year in which
2
<PAGE> 10
the Revolving Credit Termination Date occurs and (ii) Borrowers' Representative
pays to Agent the extension fee set forth in Section 2.17(e) no later than April
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. The Revolving Credit
Loans for Lenders not consenting to the Extension Request shall be due and
payable by the Borrowers on or before the Revolving Credit Termination Date
(prior to extension) and such funds shall be applied by the Agent to fully repay
the Revolving Credit Loans made by such non-consenting Lenders. After such
payment, the Revolving Credit Commitments of the non-consenting Lenders shall be
zero. The aggregate Revolving Credit Commitment during the extension periods
shall be equal to the aggregate Revolving Credit Commitment of the Lenders who
consented to the Extension Request for that period. Nothing contained herein
shall be deemed to obligate any Lender to increase its Revolving Loan
Commitment.
(d) MAXIMUM AVAILABILITY. Notwithstanding anything in this Agreement
to the contrary, in no event shall the Outstanding Amount exceed the Maximum
Availability except as specifically permitted in Section 2.9.
(e) VOLUNTARY REDUCTION OF MAXIMUM REVOLVING CREDIT COMMITMENT. Upon
at least five (5) Business Days' prior irrevocable written notice (or telephonic
notice promptly confirmed in writing) to the Agent, Borrowers' Representative
shall have the right, without premium or penalty, to permanently reduce the
Maximum Revolving Credit Commitment provided that (a) Borrowers' Representative
may not reduce the Maximum Revolving Credit Commitment below the Outstanding
Amount at the time of such requested reduction, (b) any such partial reduction
shall be in the minimum aggregate amount of Five Million Dollars (U.S.
$5,000,000) or any integral multiple of Five Million Dollars (U.S. $5,000,000)
in excess thereof, and (c) Borrowers' Representative may not reduce the Maximum
Revolving Credit Commitment to an amount less than Sixty Million Dollars (U.S.
$60,000,000) except to terminate the Revolving Credit Commitments. Any reduction
of the Maximum Revolving Credit Commitment shall be applied pro rata to each
Lender's Revolving Commitment.
2.2. AUTHORIZED AGENTS. On the Closing Date and from time to time
thereafter, the Borrowers' Representative 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
3
<PAGE> 11
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.
2.3. PROMISE TO REPAY; EVIDENCE OF INDEBTEDNESS; BORROWERS' OBLIGATIONS;
JOINT AND SEVERAL LIABILITY.
(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
4
<PAGE> 12
Default or, at the option of the Agent as provided in Section 8.2, 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' Representative or any other Borrower or
Guarantor 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 or Guarantor as security for any of the Obligations before
making a claim or asserting a cause of action against a specific Borrower under
this Agreement.
(iii) Agent's failure to perfect (by recording or otherwise),
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
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 or Guarantor 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, marshaling 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 Guarantor or the Borrowers'
Representative, 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 Guarantor or the
Borrowers' Representative, without the consent of a specific Borrower or
Borrowers' Representative, the Agent may:
(a) grant a specific Borrower or Guarantor extensions of
the time for payment of the Obligations or any part hereof;
(b) renew any of the Obligations;
(c) grant a specific Borrower or Guarantor extensions of
time for performance of agreements or other indulgences;
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<PAGE> 13
(d) at any time release any Collateral, or any mortgage,
deed of trust or security interest in any Collateral, that may
hereafter secure any of the Obligations;
(e) compromise, settle, release, or terminate any or all
of the obligations, covenants, or agreements of any specific
Borrower or Guarantor under the Note or other Loan Documents;
(f) at any time release any Guarantor from its Guaranty
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 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 or
Guarantor upon or as a result of the appointment of a receiver, intervenor, or
conservator of, or trustee or similar officer for, any Borrower or Guarantor 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 Collateral granted to Agent whether by
deed, operation of law, or otherwise.
(viii) Notwithstanding any provision contained in this
Agreement or any Loan Document to the contrary, in the event of any bankruptcy
or insolvency proceeding involving LGP-I, LLP-I, LCIF, LCIFII, Union Hills,
Phoenix, Savannah or any Guarantor or in the event of any challenge to the full
enforceability of all or any of the Loan Documents by any creditor of LGP-I,
LLP-I, LCIF, LCIFII, Union Hills, Phoenix, Savannah or any Guarantor or a
trustee, receiver or debtor-in-possession of, for or in respect of LGP-I, LLP-I,
LCIF, LCIFII, Union Hills, Phoenix, Savannah or any Guarantor the liability of
LGP-I, LLP-I, LCIF, LCIFII, Union Hills, Phoenix, Savannah or any Guarantor
under the Loan 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-I, LLP-I,
LCIF, LCIFII, Union Hills, Phoenix, Savannah's or any
Guarantor undertakings under the Loan Documents a fraudulent
conveyance under the laws of the State of New York or other
similar or analogous law or statute of the state having
jurisdiction over the subject matter; or
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<PAGE> 14
(b) the lowest amount which would render LGP-I, LLP-I,
LCIF, LCIFII, Union Hills, Phoenix, Savannah's or any
Guarantor undertakings under the Loan Documents a fraudulent
transfer under Section 548 of the Bankruptcy Code of 1978, as
amended.
Section 2.3 (e) (viii) shall control every other provision of the Loan
Documents except, however, this provision shall not be construed to prohibit a
valuation of the assets of LGP-I, LLP-I, LCIF LCIFII, Union Hills, Phoenix,
Savannah or any Guarantor 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-I, LLP-I, LCIF LCIFII, Union Hills, Phoenix, Savannah or any Guarantor under
the Loan Documents shall increase with the value of such assets up to a maximum
of $100,000,000.
2.4 JOINT AND SEVERAL LIABILITY OF THE BORROWERS AND GUARANTORS.
(a) Each of the Borrowers and Guarantors is or will be accepting
joint and several liability hereunder and under the other Loan Documents in
consideration of the financial accommodations to be provided by the Lenders
under this Agreement, for the mutual benefit, directly and indirectly, of each
of the Borrowers and Guarantors and in consideration of the undertakings of each
other Borrower and Guarantor to accept joint and several liability for the
Obligations.
(b) Each of the Borrowers and Guarantors, jointly and severally,
hereby irrevocably and unconditionally accepts, not merely as a surety but also
as a co-debtor, joint and several liability with the other Borrowers, with
respect to the payment and performance of all of the Obligations (including,
without limitation, any Obligations arising under this Section 2.4(b)),it being
the intention of the parties hereto that all the Obligations shall be the joint
and several Obligations of each of the Borrowers and Guarantors without
preferences or distinction among them.
(c) If and to the extent that any of the Borrowers or Guarantors
shall fail to make any payment with respect to any of the Obligations as and
when due or to perform any of the Obligations in accordance with the terms
thereof, then in each such event, subject to the grace periods set forth
therein, the other Borrowers and Guarantors will make such payment with respect
to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers and Guarantors under
the provisions of this Section 2.4 constitute full recourse Obligations of each
of the Borrowers and Guarantors enforceable against each such Person to the full
extent of its properties and assets, irrespective of the validity, regularity or
enforceability of this Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Agreement or the
other Loan Documents, each of the Borrowers and Guarantors hereby waives notice
of acceptance of its joint and several liability, notice of any Loans made under
this Agreement, notice of any
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<PAGE> 15
action at any time taken or omitted by the Lenders under or in respect of any of
the Obligations, and, generally, to the extent permitted by applicable law, all
demands, notices and other formalities of every kind in connection with this
Agreement. Except as otherwise expressly provided in this Agreement or the other
Loan Documents, each of the Borrowers and Guarantors hereby assents to, and
waives notice of, any extension or postponement of the time for the payment of
any of the Obligations, the acceptance of any payment of any of the Obligations,
the acceptance of any partial payment thereon, any waiver, consent or other
action or acquiescence by the Lenders at any time or times in respect of any
default by any of the Borrowers or Guarantors in the performance or satisfaction
of any term, covenant, condition or provision of this Agreement, any and all
other indulgences whatsoever by the Lenders in respect of any of the
Obligations, and the taking, addition, substitution or release, in whole or in
part, at any time or times, of any security for any of the Obligations or the
addition, substitution or release, in whole or in part, of any of the Borrowers
or Guarantors. Without limiting the generality of the foregoing, each of the
Borrowers and Guarantors assents to any other action or delay in acting or
failure to act on the part of the Lenders with respect to the failure by any of
the Borrowers or Guarantors to comply with any of its respective Obligations,
including, without limitation, any failure strictly or diligently to assert any
right or to pursue any remedy or to comply fully with applicable laws or
regulations thereunder, which might, but for the provisions of this Section 2.4,
afford grounds for terminating, discharging or relieving any of the Borrowers or
Guarantors, in whole or in part, from any of its Obligations under this Section
2.4, it being the intention of each of the Borrowers and Guarantors that, so
long as any of the Obligations hereunder remain unsatisfied, the obligations of
such Borrowers and Guarantors under this Section 2.4 shall not be discharged
except by performance and then only to the extent of such performance. The
Obligations of each of the Borrowers and Guarantors under this Section 2.4 shall
not be diminished or rendered unenforceable by any winding up, reorganization,
arrangement, liquidation, re-construction or similar proceeding with respect to
any of the Borrowers and Guarantors or the Lenders. The joint and several
liability of the Borrowers and Guarantors hereunder shall continue in full force
and effect notwithstanding any absorption, merger, amalgamation or any other
change whatsoever in the name, membership, constitution or place of formation of
any of the Borrowers and Guarantors or the Lenders.
(f) The provisions of this Section 2.4 are made for the benefit of
the Lenders and their permitted successors and assigns, and may be enforced
against any or all of the Borrowers and Guarantors as often as occasion therefor
may arise and without requirement on the part of the Lenders first to marshal
any of their claims or to exercise any of their rights against any other
Borrower or Guarantor or to exhaust any remedies available to them against any
other Borrower or Guarantor or to resort to any other source or means of
obtaining payment of any of the Obligations hereunder or to elect any other
remedy. The provisions of this Section 2.4 shall remain in effect until all of
the Obligations shall have been paid in full or otherwise fully satisfied. If at
any time, any payment, or any part thereof, made in respect of any of the
Obligations, is rescinded or must otherwise be restored or returned by the
Lenders upon the insolvency, bankruptcy or reorganization of any of the
Borrowers or Guarantor or otherwise, the provisions of this Section 2.4 will
forthwith be reinstated in effect, as though such payment had not been made.
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2.5. PROCEDURE FOR BORROWING UNDER THE REVOLVING CREDIT FACILITY
(a) NOTICE OF BORROWING. Whenever any Borrower desires to borrow
under Section 2.1, Borrowers' Representative shall deliver to Agent a notice of
borrowing (a "NOTICE OF BORROWING") substantially in the form of Exhibit C
accompanied by a Certificate of Unencumbered Eligible Properties; Maximum
Availability and Current Availability, substantially in the form of Exhibit D,
and a Certificate of Total Debt to Capitalized Value in the form of Exhibit E no
later than 10:00 A.M. (New York time) at least three (3) Business Days in
advance of the proposed Funding Date for any Revolving Credit 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 are 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 Revolving
Credit Loans to exceed the Maximum Availability currently in effect. Subject to
the provisions of Section 2.9, in the event that any Lender shall fail to fund
its Pro Rata Share of any Revolving Credit 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' Representative 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' Representative
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 2.14 and 2.15, 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.
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<PAGE> 17
If Borrowers' Representative fails to specify the type of Revolving Credit
Loan (i.e. Base Rate Loan or Eurodollar Loan) or an initial Interest Period,
Borrowers' Representative will be deemed, in each case, to have requested a Base
Rate Loan.
(b) MAKING OF REVOLVING CREDIT LOANS. (i) Promptly after receipt of
a Notice of Borrowing under Section 2.5(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 Revolving Credit Loan requested by the
Borrowers' Representative 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' Representative 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' Representative'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 Revolving Credit Loan 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 Revolving Credit 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' Representative on the applicable Funding Date. If the Revolving
Credit Loan proceeds corresponding to that amount are advanced to the Borrowers'
Representative 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 2.5(b)(ii) does not relieve any
Lender of its obligation to make its Revolving Credit Loan on any applicable
Funding Date.
2.6. COMPETITIVE BID LOANS.
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(a) THE COMPETITIVE BID OPTION. In addition to the Revolving Credit
Loans made pursuant to Section 2.5(b) hereof, and provided that the Borrower's
Representative has made a Competitive Bid Loans Election and that at the time of
such request no Default or Event of Default has occurred and is continuing and
Lexington, LCIF or LCIFII has achieved and is maintaining the Minimum Investment
Rating, the Borrowers' Representative may request Competitive Bid Loans pursuant
to the terms of this Section 2.6. The Lenders may, but shall have no obligation
to, make such offers and the Borrowers' Representative may, but shall have no
obligation to, accept such offers in the manner set forth in this Section 2.6.
Notwithstanding any other provision herein to the contrary, at no time shall the
aggregate principal amount of Competitive Bid Loans outstanding at any time
exceed the lesser of (a) the Current Availability or (b) $50,000,000.
(b) COMPETITIVE BID LOAN ACCOUNTS; COMPETITIVE BID NOTES.
(i) The obligation of the Borrowers to repay the outstanding
principal amount of any and all Competitive Bid Loans, plus interest at the
applicable Competitive Bid Rate or the sum of the Competitive Bid Margin plus
the applicable Eurodollar Rate (as the case may be) accrued thereon, shall be
evidenced by this Agreement and by individual loan accounts (the "COMPETITIVE
BID LOAN ACCOUNTS" and individually, a "COMPETITIVE BID LOAN ACCOUNT")
maintained by the Agent on its books for each of the Lenders, it being the
intention of the parties hereto that, except as provided for in paragraph (ii)
of this Section 2.6(b), each Borrower's obligations with respect to Competitive
Bid Loans are to be evidenced only as stated herein and not by separate
promissory notes and upon the making of any such Competitive Bid Loans shall
hereby constitute an absolute promise to pay same when due, without notice,
demand, presentment or setoff except as expressly provided herein or in the
other Loan Documents.
(ii) Any Lender may at any time, and from time to time,
request that any Competitive Bid Loans outstanding to such Lender be evidenced
by a joint and several promissory note of the Borrowers in substantially the
form of Exhibit G hereto (each, a "COMPETITIVE BID Note"), dated as of the
Closing Date and completed with appropriate insertions. One Competitive Bid Note
shall be payable to the order of each Lender in an amount equal to the principal
amount of the Competitive Bid Loan made by such Lender to the Borrowers, and
representing the obligation of the Borrowers to pay such Lender the principal
amount of any and all Competitive Bid Loans made by such Lender, plus interest
at the applicable Competitive Bid Rate or the sum of the Competitive Bid Margin
plus the applicable Eurodollar Base accrued thereon, as set forth herein. Upon
execution and delivery by the Borrowers of a Competitive Bid Note, the
Borrowers' obligation to repay any and all Competitive Bid Loans made to them by
such Lender and all interest thereon shall thereafter be evidenced by such
Competitive Bid Note.
(iii) Each Borrower irrevocably authorizes (i) each Lender to
make or cause to be made, in connection with a Funding Date of any Competitive
Bid Loan or at the time or receipt of any payment of principal on such Lender's
Competitive Bid Note in the case of a Competitive Bid Note, and (ii) the Agent
to make or cause to be made, in connection with a Funding Date of any
Competitive Bid Loan or at the time of receipt of any payment of principal
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on such Lender's Competitive Bid Loan Account in the case of a Competitive Bid
Loan Account, an appropriate notation on such Lender's records or on the
schedule attached to such Lender's Competitive Bid Note or a continuation of
such schedule attached thereto, or the Agent's records, as applicable,
reflecting the making of the Competitive Bid Loan or the receipt of such payment
(as the case may be) and may, prior to any transfer of a Competitive Bid Note,
endorse on the reverse side thereof the outstanding principal amount of the
Competitive Bid Loans evidenced thereby. The outstanding amount of the
Competitive Bid Loans set forth in such Lender's records or the Agent's records,
as applicable, shall be prima facie evidence of the principal amount thereof
owing and unpaid to such Lender, but the failure to record, or any error in so
recording, any such amount shall not limit or otherwise affect the obligations
of the Borrower thereunder to make payments of principal of or interest on any
Competitive Bid Loan when due.
(c) COMPETITIVE BID QUOTE REQUEST; INVITATION FOR COMPETITIVE BID
QUOTES; ADMINISTRATIVE FEE.
(i) When the Borrowers' Representative wishes to request
offers to make Competitive Bid Loans under this Section 2.6, it shall transmit
to the Agent by telex or facsimile a Competitive Bid Quote Request substantially
in the form of Exhibit G hereto (a "COMPETITIVE BID QUOTE REQUEST") so as to be
received no later than 11:00 a.m. (New York City time) (i) five (5) Business
Days prior to the requested Funding Date in the case of a Competitive Bid Loan
bearing interest calculated by reference to the Eurodollar Rate (a "EURODOLLAR
COMPETITIVE BID LOAN") or (ii) one (1) Business Day prior to the requested
Funding Date in the case of an Competitive Bid Loan bearing interest calculated
by reference to a fixed rate of interest (an "ABSOLUTE RATE COMPETITIVE BID
LOAN"), specifying:
(A) the requested Funding Date (which must be a
Business Day);
(B) the aggregate amount of such Competitive Bid
Loans, which shall be $5,000,000 or larger multiples of
$1,000,000;
(C) the duration of the Interest Period applicable
thereto in the case of Eurodollar Competitive Bid Loans,
subject to the provisions of the definition of Interest
Period; and
(D) whether the Competitive Bid Quotes requested
are for Eurodollar Competitive Bid Loans or Absolute Rate
Competitive Bid Loans.
The Borrowers' Representative may request offers to make Competitive Bid Loans
for more than one Interest Period in a single Competitive Bid Quote Request. No
new Competitive Bid Quote Request shall be given until the Borrowers'
Representative has notified the Agent of its acceptance or non-acceptance of the
Competitive Bid Quotes relating to any outstanding Competitive Bid Quote
Request.
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(ii) Promptly upon receipt of a Competitive Bid Quote Request,
the Agent shall send to the Lenders by telecopy or facsimile transmission an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit H
hereto, which shall constitute an invitation by the Borrowers' Representative to
each Lender to submit Competitive Bid Quotes in accordance with this Section
2.6.
(d) ALTERNATIVE MANNER OF PROCEDURE. If, after receipt by the Agent
and each of the Lenders of a Competitive Bid Quote Request from the Borrowers'
Representative in accordance with Section 2.6(c) the Agent or any Lender shall
be unable to complete any procedure of the auction process described in Sections
2.6(e) and (f) (inclusive) due to the inability of such Person to transmit or
receive communications through the means specified therein, such Person may rely
on telephonic notice for the transmission or receipt of such communications. In
any case where such Person shall relay on telephone transmission or receipt, any
communication made by telephone shall, as soon as possible thereafter, be
followed by written confirmation thereof.
(e) SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES. (i) Each
Lender may, but shall be under no obligation to, submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid Loans in response to any
Competitive Bid Quote Request. Each Competitive Bid Quote must comply with the
requirements of this Section 2.6(e) and must be submitted to the Agent by telex
or facsimile transmission at its offices not later than (i) 2:00 p.m. (New York
City time) on the fourth Business Day prior to the proposed Funding Date, in the
case of a Eurodollar Competitive Bid Loan or (ii) 10:00 a.m. (New York City
time) on the day prior to the proposed Funding Date, in the case of an Absolute
Rate Competitive Bid Loan, provided that the Competitive Bid Quotes may be
submitted by the Agent in its capacity as a Lender only if it submits its
Competitive Bid Quote to the Borrowers' Representative not later than (x) one
hour prior to the deadline for the other Lenders, in the case of a Eurodollar
Competitive Bid Loan or (y) 15 minutes prior to the deadline for the other
Lenders, in the case of an Absolute Rate Competitive Bid Loan. Subject to the
provisions of Sections 5.1 and 5.2 hereof, any Competitive Bid Quote so made
shall be irrevocable except with the written consent of the Agent given on the
instructions of the Borrowers' Representative.
(ii) Each Competitive Bid Quote shall be in substantially the
form of Exhibit I hereto and shall in any case specify:
(a) the proposed Funding Date;
(b) the principal amount of the Competitive Bid Loan for
which each proposal is being made, which principal amount (w)
may be greater than or less than the Commitment of the quoting
Lender, (x) must be $2,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the aggregate principal amount
of Competitive Bid Loans for which offers being made by such
quoting Lender may be accepted;
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<PAGE> 21
(c) the Interest Periods for which Competitive Bid
Quotes are being submitted;
(d) in the case of a Eurodollar Rate Competitive Bid
Loan, the margin above or below the applicable Eurodollar Base
(the "COMPETITIVE BID MARGIN") offered for each such
Eurodollar Rate Competitive Bid Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be
added to or subtracted from such Eurodollar Base;
(e) in the case of a Absolute Rate Competitive Bid Loan,
the rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "COMPETITIVE BID Rate") offered for
each such Absolute Rate Competitive Bid Loan; and
(f) the identity of the quoting Lender.
A Competitive Bid Quote may include up to five (5) separate offers by the
quoting Lender with respect to each Interest Period specified in the related
Invitation for Competitive Bid Quotes.
(iii) Any Competitive Bid Quote shall be disregarded if it:
(a) is not substantially in the form of Exhibit I
hereto;
(b) contains qualifying, conditional or similar
language;
(c) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bid
Quotes; or
(d) arrives after the time set forth in Section
2.6(e)(i) hereof.
(f) NOTICE TO BORROWERS' REPRESENTATIVE. The Agent shall promptly
notify the Borrowers' Representative of the terms (a) of any Competitive Bid
Quote submitted by a Lender that is in accordance with Section 2.6(e), and (b)
of any subsequent amendment, modification or supplement of such Competitive Bid
Quote submitted by such Lender. Any such amendment, modification or supplement
of a Competitive Bid Quote shall be disregarded by the Agent unless same is
submitted solely to correct a manifest error in such Competitive Bid Quote and
was received by the Agent within the time period required in Section 2.6(e)(i)
for receipt of Competitive Bid Quotes. The Agent's notice to the Borrowers'
Representative shall specify (i) the aggregate principal amount of Competitive
Bid Loans for which offers have been received for each Interest Period specified
in the related Competitive Bid Quote Request, (ii) the respective principal
amounts and Competitive Bid Margins or Competitive Bid Rates, as the case may
be, so offered, and the identity of the respective Lenders submitting such
offers, and (iii) if applicable, limitations on the aggregate principal amount
of Competitive Bid Loans for which offers in any single Competitive Bid Quote
may be accepted.
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(g) ACCEPTANCE AND NOTICE BY BORROWER AND AGENT. Not later than
11:30 a.m. (New York City time) on (i) the third Business Day prior to the
proposed Funding Date, in the case of a Eurodollar Rate Competitive Bid Loan or
(ii) the proposed Funding Date, in the case of an Absolute Rate Competitive Bid
Loan, the Borrowers' Representative shall notify the Agent of its acceptance or
non-acceptance in whole or in part of each Competitive Bid Quote in
substantially the form of Exhibit J hereto. The Borrowers' Representative may
accept any Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Bid
Loan may not exceed the applicable amount set forth in the related Competitive
Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Competitive Bid Rates, as the case may be;
and
(iii) the Borrowers' Representative may not accept any offer
that is described in subsection 2.6(e)(iii).
The Agent shall promptly notify each Lender which submitted a Competitive
Bid Quote of the Borrowers' Representative acceptance or non-acceptance thereof.
(h) ALLOCATION BY AGENT. If offers are made by two (2) or more
Lenders with the same Competitive Bid Margin or Competitive Bid Rate, as the
case may be, for a greater aggregate principal amount than the amount in respect
of which offers are accepted by Borrowers' Representative for the related
Interest Period, the principal amount of Competitive Bid Loans in respect of
which such offers are accepted shall be allocated by the Agent among such
Lenders as nearly as possible (in such multiples, not less than $1,000,000, as
the Agent may deem appropriate) in proportion to the aggregate principal amounts
of such offers. Determination by the Agent of the amounts of Competitive Bid
Loans shall be conclusive in the absence of manifest error.
(i) FUNDING OF COMPETITIVE BID LOANS. If, on or prior to the Funding
Date of any Competitive Bid Loan, the Maximum Revolving Credit Commitment has
not been terminated in full and if, on such Funding Date, the applicable
conditions of Sections 5.1 and 5.2 hereof are satisfied, and the Agent shall
have received a certificate in the form of Exhibit D hereto showing that the
Competitive Bid Loan will not exceed Current Availability, the Lender or Lenders
whose offers the Borrowers' Representative has accepted will fund each
Competitive Bid Loan so accepted. Such Lender or Lenders will make such
Competitive Bid Loans by crediting the Agent for further credit to the
Borrowers' Representative's specified account with Agent, in immediately
available funds not later than 1:00 p.m. (New York City time) on such Funding
Date.
(j) FUNDING LOSSES. If, after acceptance of any Competitive Bid
Quote pursuant to Section 2.6(g), the Borrowers' Representative (a) fails to
borrow any Competitive Bid Loan so accepted on the date specified therefor, or
(b) repays the outstanding amount of the Competitive Bid Loan on or prior to the
last day of the Interest Period relating thereto, each
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Borrower shall indemnify the Lender making such Competitive Bid Quote or funding
such Competitive Bid Loan against any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such unborrowed Loans in accordance with, Section 2.16.
(k) REPAYMENT OF COMPETITIVE BID LOANS; INTEREST. The principal of
each Competitive Bid Loan shall become absolutely due and payable by the
Borrowers on the last day of the Interest Period relating thereto, and the
Borrowers hereby absolutely and unconditionally promise to pay to the Agent for
the account of the relevant Lenders at or before 1:00 p.m.(New York City time)
on the last day of the Interest Periods relating thereto the principal amount of
all such Competitive Bid Loans, plus interest thereon at the applicable
Competitive Bid Rates or the sum of the Competitive Bid Margin plus the
applicable Eurodollar Base (as the case may be). The Competitive Bid Loans shall
bear interest at the rate per annum specified in the applicable Competitive Bid
Quotes. Interest on the Competitive Bid Loans shall be payable (a) on the last
day of the applicable Interest Periods, and if any such Interest Period is
longer than three months, also on the last day of the third month following the
commencement of such Interest Period, and (b) on the Revolving Credit
Termination Date for all Loans. Subject to the terms of this Agreement, the
Borrowers' Representative may make Competitive Bid Quote Requests with respect
to new borrowings of any amounts so repaid prior to the Revolving Credit
Termination Date. The provisions of Section 2.8(c) shall not apply to
Competitive Bid Loans.
(l) OPTIONAL REPAYMENT OF COMPETITIVE BID LOANS. The Borrowers shall
have the right, at their election, to repay the outstanding amount of any of the
Competitive Bid Loans, as a whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
of any Competitive Bid Loan pursuant to this Section 2.6(i) may be made only on
the last day of the Interest Period relating thereto, or, if made prior to such
date, shall be made subject to the provisions of Section 2.(6)(k) hereof. The
Borrowers' Representative shall give the Agent no less than three (3) Business
Days notice of any proposed prepayment pursuant to this Section 2.(6)(l)
specifying the proposed date of prepayment of the Competitive Bid Loan and the
principal amount to be paid.
(m) DETERMINATION OF INTEREST RATE. As soon as practicable on the
second Business Day prior to the first day of each Interest Period in the case
of a Eurodollar Competitive Bid Loan (the "EURODOLLAR COMPETITIVE BID INTEREST
RATE DETERMINATION DATE"), the Agent shall determine (pursuant to the procedures
set forth in the definition of Eurodollar Base) the interest rate which shall
apply to the Eurodollar Competitive Bid 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' Representative 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 any 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.
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2.7. INTEREST ON THE LOANS AND OTHER OBLIGATIONS.
(a) GENERALLY. Each Revolving Credit Loan shall be (i) a Eurodollar
Loan or a Base Rate Loan as selected or deemed to have been selected by
Borrowers' Representative initially at the time a Notice of Borrowing is given
pursuant to Section 2.5(a); or (ii) as selected pursuant to Section 2.8(c);
except in each case for any portion of a Eurodollar Loan which is converted to a
Base Rate Loan pursuant to Section 2.1 or 2.5. All Competitive Bid Loans shall
be governed by the provisions of Section 2.6. 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 of
repayment (whether by acceleration or otherwise), at the interest rates
specified as follows (the "APPLICABLE RATE"):
(iii) 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;
(iv) in the case of Competitive Bid Loan at the Competitive
Bid Rate;
(v) in the case of a Eurodollar Rate Competitive Bid Loan at
the Eurodollar Base plus the Competitive Bid Margin; and
(vi) in the case of the Base Rate Loan or any 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 Revolving
Credit Loans shall be selected by the Borrowers' Representative at the time a
Notice of Borrowing or a Notice of Conversion/Continuation is delivered by the
Borrowers' Representative to the Agent; provided, however, the Borrowers'
Representative may not select the Eurodollar Rate as the applicable basis for
determining the rate of interest on any 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 provided further 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 Revolving Credit 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
Revolving Credit Loan shall be determined by reference to the Base Rate. The
basis for determining the applicable rate of interest on a Competitive Bid Loan
shall be as set forth in Section 2.6.
(b) INTEREST PAYMENTS. (i) Interest accrued on each Loan shall be
payable in arrears (A) on each Interest Payment Date, (B) upon the payment or
prepayment thereof in full or in part, and (C) if not previously paid in full,
(whether by acceleration or otherwise) on the Revolving Credit Termination Date.
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(ii) Interest accrued on the principal balance of any
outstanding Reimbursement Obligation 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 Obligation, (B) upon repayment thereof in full or in part,
and (C) if not previously 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 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 is not made 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.
Subsequent waivers during the term of the Loan shall be at the Agent's
discretion. 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 2.7(c) shall be payable upon
demand.
2.8. DURATION AND DETERMINATION OF INTEREST PERIOD; DETERMINATION OF
INTEREST RATE; CONTINUATION/CONVERSION OF LOANS
(a) DURATION AND DETERMINATION OF INTEREST PERIOD. Each notice as
set forth in Section 2.5(a) (with respect to a Borrowing of Revolving Credit
Eurodollar Rate Loans) or Section 2.8(c) (with respect to a conversion into or
continuation of Revolving Credit Eurodollar Loans) shall designate an Interest
Period, provided, that no more than eight (8) Interest Periods shall be in
effect at any one time for any Revolving Credit Eurodollar Loans, Base Rate
Loans or Competitive Bid Loans, or any combination of the three.
(b) DETERMINATION OF INTEREST RATE. As soon as practicable on the
second Business Day prior to the first day of each Interest Period in the case
of a Revolving Credit Eurodollar Rate Loan (the "Interest Rate Determination
Date"), the Agent shall determine (pursuant to the procedures set forth in the
definition of Eurodollar Base in the case of a Eurodollar Rate Loan) the
interest rate which shall apply to the Revolving Credit 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' Representative 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
any reserve percentage when calculating interest due on Eurodollar Loans shall
not constitute, whether by course of dealing or otherwise, waiver by such Lender
of its right to collect such amount for any future period.
(c) CONVERSION/CONTINUATION OF LOANS.
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(i) Subject to the provisions of Sections 2.14 and 2.15,
Borrowers' Representative shall have the option (A) to convert at any time all
or any part of outstanding Base Rate Loans to Revolving Credit Eurodollar Loans
or (B) to convert all or any part of outstanding Revolving Credit 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
Revolving Credit Eurodollar Loans having Interest Periods which expire on the
same date as Revolving Credit Eurodollar Loans, and the succeeding Interest
Period of such continued Revolving Credit Eurodollars Loans shall commence on
such expiration date; provided, however, no such outstanding Revolving Credit
Eurodollars Loan may be continued as, or be converted into, a Revolving Credit
Eurodollar Loan (i) if the continuation of, or the conversion into, would
violate any of the provisions of Section 2.14 or 2.15 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 Revolving Credit Eurodollar
Rate Loans under this Section 2.8(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 Revolving Credit Loan Borrowers'
Representative shall deliver a Notice of Continuation/Conversion substantially
in the form of Exhibit K to Agent no later than 10:00 A.M. (New York City time)
at least three (3) Business Days in advance of the proposed
continuation/conversion date in the case of a conversion to, or a continuation
of, Revolving Credit 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 Revolving Credit 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 Revolving Credit Eurodollar Loan, the
requested Interest Period, and (E) 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 2.14 and 2.15,
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.
If Borrowers' Representative fails to give a valid Notice of
Continuation/Conversion in respect of any portion of a Revolving Credit
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' Representative
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 2.8.
2.9. OPTIONAL PREPAYMENTS; MANDATORY PREPAYMENTS
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(a) Subject to Section 2.9(c), Borrowers may, at their option,
prepay any Loans on (i) the last day of the applicable Interest Period, in whole
or in part, without premium or penalty or additional cost or expense, or (ii)
any other time subject to the indemnification obligations contained in Section
2.16; upon, in each case, at least three (3) Business Days' prior written notice
to Agent, specifying the amount of prepayment. Base Rate Loans may be prepaid
without premium or penalty or additional cost or expense at any time. 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 2.16. 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 2.14 and 2.15.
(c) If at any time prior to the Revolving Credit Termination Date
for any reason (except as a result of the failure of an Unencumbered Eligible
Property to continue to qualify as an Unencumbered Eligible Property solely
because the tenant no longer qualifies as a Class I or Class II Credit Tenant)
the Outstanding Amount or Total Unsecured Debt exceeds the Maximum Availability
( the amount of any such excess 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'
Representative of same reduce the Outstanding Amount or Total Unsecured Debt to
an amount that is equal to or less than the Maximum Availability.
(d) If at any time an Unencumbered Eligible Property fails to
continue to qualify as an Unencumbered Eligible Property solely because the
tenant no longer qualifies as a Class I or Class II Credit Tenant (unless the
Requisite Lenders approved such tenant at the time of the approval of such
Unencumbered Eligible Property notwithstanding that the tenant failed to achieve
or maintain such qualification) 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 such Unencumbered Eligible Property
ceased to qualify as an Unencumbered Eligible Property for such reason (unless
the Excess Outstandings have been eliminated by Requisite Lender's approval and
acceptance of another Unencumbered Eligible Property, or by the tenant regaining
its status as a Class I or Class II Credit Tenant, 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 Unencumbered Eligible Property losing its status as an
Unencumbered Eligible Property under the terms of Section 2.19(a)(i), (ii), (iv)
and (b) or Section 2.21, the provisions of Section 2.9(c) shall apply
immediately.
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(e) Subject to the provisions of Section 2.11, Borrowers'
Representative may designate the application of any prepayments to be applied to
principal on the Revolving Credit Loans to the Eurodollar Loans or Base Rate
Loans as it may select, provided that if Borrowers' Representative does not
designate such application, such prepayments shall be applied (i) first to
outstanding Base Rate Loans, and (ii) second to outstanding Eurodollar Loans.
2.10. 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.
2.11. 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 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 2.11(b)(v) and Section 2.11(b)(vi), all payments of principal and
interest in respect of outstanding Revolving Credit Eurodollar Loans and Base
Rate 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 2.11(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
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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' Representative so
designates.
Unless otherwise designated by the Borrowers' Representative, all principal
payments in respect of Loans shall be applied first, to repay outstanding Base
Rate Loans, and then to repay outstanding Revolving Credit Eurodollar Rate Loans
with those Revolving Credit Eurodollar Rate Loans which have earlier expiring
Interest Periods being repaid prior to those which have later expiring 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 any Revolving Credit Eurodollar Loans or Base Rate
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 applied in accordance with
the provisions of this Section 2.11(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.
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The order of priority set forth in this Section 2.11(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' Representative, Agent
shall give prompt notice thereof to Borrowers' Representative. The order of
priority set forth in clauses (C) through (G) of this Section 2.11(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 2.11(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 2.11(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 2.11(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 10.12 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 10.12 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 2.11(b)(iii).
On the proposed Funding Date, the Lenders shall make the requested Loans in
accordance with the procedures and subject to the conditions specified in
Section 2.1. Any Loans made under this Section 2.11(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 2.11(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,
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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' Representative
has not canceled its Notice of Borrowing under Section 2.5(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
2.11(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 2.8(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 2.11(b)(v), and whether
or not the Non Pro Rata Loan with respect thereto has been
repaid, converted or continued;
(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' Representative (made on the dates such amounts
are advanced pursuant to this Section 2.11(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' Representative as to its
desired application, all repayments of principal which, in
accordance with the other terms of this Section 2.11, 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
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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 2.13, 2.14 or
2.15, the Borrowers' Representative 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' Representative 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 to 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. In addition, such Designated Lender shall use reasonable efforts
to designate another lending office for any affected Loan or take other steps
which may eliminate or reduce such additional compensation under Sections 2.13,
2.14 or 2.15; provided, however, that in the sole judgment of such Lender such
action shall not be disadvantageous to it. 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'
Representative's election under the provisions of this Section 2.11(b)(vi)
affect any Borrower's obligation to pay the additional compensation required
under either Sections 2.13, 2.14 or Section 2.15 until the Loans of the
Designated Lender are assigned (assuming such assignment cures the need for such
additional payment) or repaid in accordance with this Section 2.11(b)(vi).
(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 2.7(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.
2.12. USE OF LOAN PROCEEDS AND LETTERS OF CREDIT. Except for any amounts
advanced by Agent under Section 2.11(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 Credit) only (i) to refinance
existing indebtedness; (ii) to provide financing for income-producing
properties; (iii) to fund leasehold improvements, renovation, expansion and
construction of income-producing properties; (iv) for working capital purposes.
2.13. INCREASED COSTS.
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(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;
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then, and in each such case, the Borrowers will, within thirty (30) days after
written 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. It is agreed that such Lender shall make a reasonable
allocation of such additional costs, reductions, payments or foregone interest
amounts or other sums among its Loans made hereunder and loans to other
borrowers affected thereby; shall treat the Borrowers hereunder in a manner
substantially the same as its treatment of its other customers under other loan
facilities affected thereby and shall notify Borrowers' Representative of any
such event as soon as reasonably possible after Lender's discovery thereof.
(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' Representative
of such fact as soon as reasonably possible after the discovery thereof, and the
Borrowers' Representative shall pay to such Lender from time to time within 30
days after written 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' Representative to be an amount that will adequately compensate such
Lender in light of these circumstances for its increased costs of maintaining
such capital.
2.14. 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' Representative 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 2.16 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' Representative 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.
2.15. 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
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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' Representative and (i) 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' Representative for such Eurodollar Loans pursuant
to Section 2.5 hereof shall thereupon, and until the circumstances giving rise
to such notice no longer exist (as notified by Agent to Borrowers'
Representative) 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' Representative 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' Representative
for the Eurodollar Loans pursuant to Section 2.5 hereof shall thereupon, and
until the circumstances giving rise to such notice no longer exist (as notified
by Agent to Borrowers' Representative), be deemed a request for the making of
Base Rate Loans. Upon such circumstances no longer existing, Borrowers'
Representative may thereafter request Eurodollar Loans in accordance with the
terms hereof.
2.16. 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) and reasonable administrative costs 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 2.5 or, as the case may be, a notice requesting a
continuation or conversion under Section 2.8(c) or any failure by any Borrower
to satisfy any of the conditions
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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 2.16 shall, in the absence of manifest error, be conclusive and binding
upon each Borrower.
2.17. FEES.
(a) STANDBY FEE. The Borrowers' Representative shall pay to the
Agent, for the account of the Lenders based on their respective Pro Rata Shares,
an annual fee (the "STANDBY FEE"), on the daily amount by which the Maximum
Revolving Credit Commitment exceeds the Outstanding Amount, 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. If the Outstanding
Amount equals or exceeds 50% of the Maximum Revolving Commitment the Standby Fee
shall be fifteen (15) basis points (.15%) per annum of the daily unused portion
of the Maximum Revolving Credit Commitment. If the Outstanding Amount is less
than 50% of the Maximum Revolving Commitment, the Standby Fee shall be twenty
(20) basis points (.20%) per annum of the daily unused portion of the Maximum
Revolving Credit Commitment.
(b) LETTER OF CREDIT FEE. In addition to any charges paid pursuant
to Section 3.1(g), the Borrowers' Representative 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) UPFRONT FEE. Borrowers jointly and severally agree to pay to the
Agent an upfront fee (the "UPFRONT FEE") as set forth in that certain letter
agreement dated April 22, 1998 between the Borrowers' Representative and the
Agent.
(d) COMPETITIVE BID FACILITY FEE. In the event the Borrowers'
Representative makes a Competitive Bid Loans Election the Borrowers shall pay to
the Agent, for the account of the Lenders based on their respective Pro Rata
Shares, an annual fee in lieu of the Standby Fee, equal to the product of twenty
(20) basis points (.20%) per annum and the Maximum Revolving Credit Commitment
(the "COMPETITIVE BID FACILITY FEE"), payable quarterly in arrears. In the event
Borrowers are no longer eligible to request Competitive Bid Loans, the
Competitive Bid Facility Fee shall be terminated and the Standby Fee reinstated
until the Borrowers once again qualify for and make a Competitive Bid Loans
Election.
(e) EXTENSION FEE. Upon each extension of the Revolving Credit
Termination Date, as provided in Section 2.1(c), Borrowers' Representative
agrees to pay Agent for the
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account of Lenders based on their respective Pro Rata Shares, an extension fee
equal to three-eighths of one percent (0.375%) of the then existing Revolving
Credit Commitments.
(f) CALCULATION AND PAYMENT OF FEES. The Standby fee and Competitive
Bid Facility Fee shall be calculated on the basis of the actual number of days
elapsed in a 360 day year. All such fees shall be payable in addition to, and
not in lieu of, interest, expense reimbursements, indemnification and other
Obligations. All fees shall be payable to the Agent in immediately available
funds and 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 2.17,
shall bear interest at the interest rate specified in Section 2.7(c) upon the
occurrence and during the continuance of an Event of Default with respect to the
nonpayment thereof and shall constitute Obligations. Notwithstanding the
foregoing, in the event that any Lender fails to fund its Pro Rata Share of any
Revolving Credit Loan or Competitive Bid Loan requested by the Borrowers'
Representative which such Lender is obligated to fund under the terms of this
Agreement, (A) such Lender shall not be entitled to any Standby Fee or
Competitive Bid Facility Fee (whichever is applicable) with respect to its
Revolving Credit Commitment until such failure has been cured in accordance with
Section 2.11(b)(v)(B) and (B) until such time, all such fees shall accrue in
favor of the Lenders which have funded their respective Pro Rata Shares of such
Revolving Credit Loans and Competitive Bid Loans and 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 other than Competitive
Bid 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.
2.18. 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.
2.19. UNENCUMBERED ELIGIBLE PROPERTIES.
(a) "UNENCUMBERED ELIGIBLE PROPERTY" means a Property which is and
continues to be at all times:
(i) wholly owned in fee simple or ground leased pursuant to a
Financeable Ground Lease by a Borrower or Guarantor; and
(ii) unencumbered, free and clear of any Liens and other
matters effecting title other than for Permitted Exceptions and Customary
Permitted Liens; and
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(iii) leased to a single Class I or Class II Credit Tenant
(unless otherwise agreed to by the Requisite Lenders); subject to an Approved
Lease; and
(iv) shall not be used for the following purposes:
restaurants, hotels, movie theaters, parking facilities (except for on-site
parking made available to tenants and visitors of the Property), car
dealerships, gambling enterprises, convenience stores or gas stations or any
other purpose which is not acceptable to the Requisite Lenders other than
office, retail, industrial, warehouse, distribution, research and development or
data processing.
(b) In addition, no Property shall be accepted as an Unencumbered
Eligible Property unless the following are true, correct and accurate in all
material respects on the date of acceptance of such Property as an Unencumbered
Eligible Property and no Unencumbered Eligible Property shall continue to be an
Unencumbered 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' Representative from Agent:
(i) TITLE. The Borrower or Guarantor owning or ground leasing such
Property has good, record, marketable and indefeasible Fee Interest or Leasehold
Interest in such Property except for Permitted Exceptions and Customary
Permitted Liens.
(ii) LEASES. Each of the Approved Leases and each Financeable Ground
Lease is in full force and effect and is a legally valid and binding obligation
of the Borrower or Guarantor who owns the Property and the other parties
thereto. None of the Approved Leases or any Financeable Ground Lease has been
amended, modified or terminated, nor has there been any change in or waiver of
any obligation contained in any such Approved Lease or Financeable 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 or Guarantor has not mortgaged,
pledged or otherwise encumbered any Approved Lease or Financeable Ground Lease
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 Financeable Ground Lease is outstanding.
Such Borrower or Guarantor has performed all of its material repair and
maintenance obligations (if any) and, to the knowledge and belief of such
Borrower or Guarantor, each tenant under each Approved Lease and each ground
lessor under any Financeable Ground Lease has performed all of its material
repair, maintenance or other obligations.
(iii) 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.
(iv) 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;
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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.
(v) 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.
(vi) 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 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.
(vii) 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.
(viii) 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 such Property or to permit the Buildings to be used under
the zoning laws for their current use; and all private ways providing access to
such 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
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Acts, have been validly issued by the appropriate Governmental Authority and are
now in full force and effect.
(ix) NO REQUIRED REAL PROPERTY CONSENTS, PERMITS, ETC. No Borrower
or Guarantor has received any notice 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 such 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.
(x) 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, such Property or any part thereof.
(xi) INSURANCE. No Borrower or Guarantor has received any notices
from any insurer or its agent requiring performance of any work with respect to
such Property.
(xii) REAL PROPERTY TAXES; SPECIAL ASSESSMENTS. There are no unpaid
or outstanding real estate or other taxes or assessments on or against such
Property or any part thereof (except only real estate taxes not yet due and
payable). There are no betterment assessments or other special assessments
presently pending with respect to any portion of such Property and no Borrower
or Guarantor has received any notice of any such special assessment being
contemplated.
(xiii) 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.
(xiv) EMINENT DOMAIN. There are no pending eminent domain
proceedings against such Property or any part thereof, and, to the best of each
Borrower's and Guarantor's knowledge, no such proceedings are presently
threatened or contemplated by any taking authority.
(xv) COMPLIANCE WITH ENVIRONMENTAL LAWS. Except as specifically set
forth in the Environmental Reports accepted for such Property delivered to Agent
and listed on Exhibit L, to the knowledge of each Borrower or Guarantor 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.
(xvi) POLLUTION; HAZARDOUS MATERIALS. In connection with the
acquisition and ownership of its interests in such Property, the Borrower or
Guarantor who owns such Property
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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 L,
to the best of such Borrower's or Guarantor'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 material adverse effect
on the value of such Property as security for the Loans) are used in the
operation of such Property.
(xvii) MATERIALS PROVIDED TO AGENT. The Borrower or Guarantor who is
the owner of the applicable Property submitted for acceptance as an Unencumbered
Eligible Property has satisfied the requirements of paragraphs (g), (h) and (i),
of Section 5.1 in respect of such Property.
(xviii) UNENCUMBERED ELIGIBLE PROPERTY APPLICATION. Any Borrower or
Guarantor may submit to Agent from time to time one or more Unencumbered
Eligible Property Applications, which Agent shall promptly distribute to each
Lender after receipt thereof, and 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 Unencumbered Eligible Property
Application made by any Borrower or Guarantor. All information submitted in
connection with an Unencumbered Eligible Property Application is subject to the
reasonable approval of the Requisite Lenders. The Borrowers' Representative
shall be notified of such Property's rejection as an Unencumbered Eligible
Property together with the basis for such rejection in reasonable detail by the
Agent as promptly as possible and in any event within ten (10) Business Days
after receipt of a complete Unencumbered Eligible Property Application. If Agent
has not accepted or rejected an Unencumbered Eligible Property Application
within five (5) Business Days after receipt, Borrowers' Representative shall
send a written reminder notice to Agent and Agent's failure to reject an
Unencumbered Eligible Property within five (5) Business Days after receipt of
such reminder notice shall be deemed acceptance of same by the Requisite
Lenders. In the event information required to be submitted in connection with an
Unencumbered Eligible Property Application is submitted on a piecemeal basis,
the ten (10) Business Day review period shall not commence until Agent receives
a transmittal letter from the Borrowers' Representative accompanying the final
submission stating that the Borrowers' Representative now considers the
Unencumbered Eligible Property Application to be complete.
(xix) GUARANTIES. In the event an Unencumbered Eligible Property
Application is submitted for any Property that is not owned by a Borrower or
existing Guarantor, such Property shall only be accepted as an Unencumbered
Eligible Property pursuant to this Section 2.19 if a Guaranty has been executed
by the owner of such Unencumbered Eligible Property and delivered to the Agent.
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(xx) APPROVED UNENCUMBERED ELIGIBLE PROPERTIES. Subject to the
continued requirements of Sections 2.19(a) and (b), the Properties identified on
Schedule 1 hereto are hereby approved as Unencumbered Eligible Properties.
2.20. WITHDRAWAL OF UNENCUMBERED ELIGIBLE PROPERTY. Borrowers'
Representative shall have the ability to withdraw any Unencumbered Eligible
Property from the terms of this Agreement so long as no Default or Event of
Default exists or occurs as a result (and upon such withdrawal, the applicable
Borrower or Guarantor (other than Lexington, LCIF and LCIFII) which owns such
Unencumbered Eligible Property (provided that same is the only Unencumbered
Eligible Property owned by such Borrower or Guarantor) shall be released from
all obligations in respect of this Agreement).
2.21 EXCLUSION OF UNENCUMBERED ELIGIBLE PROPERTIES. If any Unencumbered
Eligible Property fails to continue to meet the requirements of Sections 2.19(a)
and (b), and such failure is due to a reason other than that covered by Section
2.9(d), and if such failure to comply with Section 2.19(b) results in a MAC
which is not corrected within thirty (30) days after notice to Borrowers'
Representative as provided in Section 2.19(b), then such Unencumbered Eligible
Property shall be immediately excluded from the calculation of any covenant
contained in this Agreement and shall no longer be considered to be an
Unencumbered Eligible Property for the purposes of this Agreement.
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 the lesser of (i) the Maximum Revolving Credit
Commitment minus the Outstanding Amount or (ii) $10,000,000, 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
$10,000,000 or (2) the Loans 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
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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' Representative
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 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' Representative
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 third (3rd) 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 2.5(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
Current 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).
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(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' Representative 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'
Representative 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
2.7(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
2.7(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 Credit and the payment (or the failure to pay
when due) by the Borrowers' Representative 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.
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(ii) If any Issuing Bank makes any payment under any Letter of
Credit and the Borrowers' Representative 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 2.7(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 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) If requested, an Issuing Bank shall furnish to the Agent
and each Lender, 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;
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(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 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' Representative 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' Representative's account as may be agreed upon by the Borrowers'
Representative and such Issuing Bank from time to time.
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(h) ISSUING BANK REPORTING REQUIREMENTS. If requested, 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' Representative, 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' Representative 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' Representative 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, 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
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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).
(k) EXISTING LETTERS OF CREDIT. Two Letters of Credit are currently
outstanding on behalf of the Borrowers' Representative under the Fleet Revolving
Loan. Such Letters of Credit shall be transferred to and deemed to be issued
under this Agreement as of the Closing Date.
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 on behalf of itself and
each Guarantor 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, 1997 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 3/31/98 and the related unaudited statements of
income, for the three month period ended on 3/31/98 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 three 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 statements or in the notes thereto. Lexington has previously delivered
to Agent copies of its annual report on Form 10-K for the fiscal year ended 1997
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 or Guarantor.
4.3. EXISTENCE; BORROWER'S AND GUARANTOR'S COMPLIANCE WITH LAW. Lexington
is a trust duly organized, validly existing and in good standing under the laws
of the State of
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Maryland. Each Borrower and Guarantor is a duly organized and validly existing
in its jurisdiction of organization. Each Borrower and Guarantor (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 and
Guarantor 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 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 or Guarantors 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 Guarantor and this Agreement constitutes, and each other Loan
Document when executed and delivered will constitute, a legal, valid and binding
obligation of each Borrower and Guarantor enforceable against such Borrower and
Guarantor 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 or Guarantor 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 and Guarantor, threatened against any
Borrower or Guarantor 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 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.
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(a) Schedule 2.19 accurately sets forth the ownership of each
Unencumbered Eligible Property. Each Borrower and Guarantor that is shown by
Schedule 2.19 to be the owner of an Unencumbered Eligible Property is the sole
owner of such Unencumbered Eligible Property and has a good record, marketable
and indefeasible Fee Interest or a valid Leasehold Interest in such Unencumbered
Eligible Property, in each case free and clear of all Liens and other matters
affecting title except for Permitted Exceptions and Customary Permitted Liens.
(b) To the best of each Borrower's and Guarantor's knowledge, the
Buildings located on each Unencumbered Eligible Property are in good operating
condition and repair, free of any structural or engineering defects known to any
Borrower or Guarantor 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 each Borrower's and Guarantor's knowledge, all
water, sewer, gas, electricity, telephone and other utilities serving each
Unencumbered Eligible Property are supplied directly to such Unencumbered
Eligible Property by public utilities and enter such Unencumbered Eligible
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 or Guarantor'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 assessments for public
improvements that have been made against the Unencumbered Eligible 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 or Guarantor has received notice of any pending,
threatened or contemplated condemnation proceeding or similar taking affecting
any of the Unencumbered Eligible Properties, or any portion thereof, or any sale
or other disposition of any of the Unencumbered Eligible 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 Unencumbered Eligible Property or any portion thereof, the
absence of which could impair the use of any Unencumbered Eligible 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 or Guarantor 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 Unencumbered
Eligible 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, subject to such exceptions which are
not reasonably likely to have, in the aggregate, a Material Adverse Effect.
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(f) A true, correct and complete copy of each Approved Lease and a
true, correct and complete copy of any Financeable Ground Lease is identified on
Exhibit M and has been delivered to Agent. The Approved Leases (and any
subleases permitted thereunder) constitute the sole and complete agreements and
understandings relating to leasing or licensing of space in the Buildings or
otherwise at such Unencumbered Eligible Properties. There are no occupancies,
rights, privileges or licenses in or to the Buildings or any other part of the
Unencumbered Eligible Properties other than pursuant to the Approved Leases,
Financeable Ground Leases or pursuant to Permitted Exceptions. Except as set
forth in Exhibit M, the Approved Leases and Financeable Ground Leases are in
full force and effect, in accordance with their respective terms, without any
payment default or any other material default thereunder beyond applicable grace
periods, nor to the best of each Borrower's or Guarantor's knowledge are there
any defenses, counterclaims, offsets, concessions or rebates available to any
tenant thereunder except as may be provided in the Approved Leases, 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 Approved
Leases or Financeable Ground Leases and, to the best of each Borrower's or
Guarantor's knowledge there is no basis for any such claim or notice of default
by any tenant which would have a Material Adverse Effect. No tenant has paid
more than one month's rent in advance except for any security deposits. 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. No Borrower or Guarantor has
mortgaged, pledged or otherwise encumbered any of the Approved Leases or any
Financeable Ground Lease except for Permitted Exceptions or Customary Permitted
Liens.
4.9. TAXES. Each Borrower and Guarantor 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 or Guarantor 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.
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4.11. ERISA. No Borrower or Guarantor 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 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 Guarantor 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 or Guarantor 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 or Guarantor 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 or Guarantor 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 or Guarantor 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 or Guarantor 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 or Guarantor 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
Q, no Borrower or Guarantor 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 or Guarantor 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.
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(i) Exhibit N (A) contains a diagram indicating the corporate
structure of Lexington, each Borrower, and any other Person in which Lexington
or any 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 any of the Borrowers, each Subsidiary: (A) is a
corporation or partnership, as indicated on Exhibit N, 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. POLLUTION; HAZARDOUS MATERIALS. In connection with the acquisition
and ownership of their interests in the Unencumbered Eligible Properties, the
Borrowers and Guarantors 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 Unencumbered Properties as is reasonably necessary
or desirable in connection with Hazardous Materials which might be present in
the air, soil, surface water or groundwater at such Unencumbered Eligible
Property. Except as specifically set forth in the Environmental Reports listed
on Exhibit L (as amended or supplemented from time to time by additional
Environmental Reports with respect to future Unencumbered 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 or Guarantor's knowledge,
there are no Hazardous Materials present in the air, soil, surface water or
groundwater at any Unencumbered Eligible 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 Unencumbered Eligible
Property, including, without limitation, petroleum used for heating oil) are
used in the operation of any Unencumbered Eligible Property.
4.16. DECLARATION OF TRUST, PARTNERSHIP AGREEMENT, ETC. The copies of the
Declaration of Trust 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 and will be true,
correct and complete in the case of each Guarantor when submitted to Agent under
Section 5.2.
4.17. 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 of any Borrower to Lender in connection with
the transactions contemplated hereby or
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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.
4.18. YEAR 2000. Borrower's Representative has conducted a review and
assessment of the computer systems of each Borrower and Guarantor and their
Subsidiaries with respect to the "YEAR 2000 PROBLEM" (that is, the risk that
computer applications may not be able to properly perform date-sensitive
functions after December 31, 1999) and, based on that review and inquiry, each
Borrower and Guarantor does not believe that upon implementation of the new
information systems currently being implemented, the year 2000 problem could
reasonably be expected to have a Material Adverse Effect on the Borrower or
Guarantor collectively.
4.19 GUARANTORS. The representations and warranties in Sections 4.2
through 4.11, 4.15 through 4.18, shall be true, correct and complete with
respect to each Guarantor.
SECTION 5. CONDITIONS PRECEDENT
5.1. CONDITIONS TO LOANS. The obligation of any Lender to make a Loan
hereunder on the Initial Funding Date is subject to the satisfaction of the
following conditions precedent:
(a) NOTE; LOAN DOCUMENTS. 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 and each of
the other Loan Documents shall have been duly executed and delivered by the
respective parties thereto and all shall be in full force and effect.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by each Borrower or Guarantor 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 each Guarantor indicating the enforceability of the
Loan Documents, 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) ORGANIZATIONAL DOCUMENTS; RESOLUTIONS; INCUMBENCY CERTIFICATE;
AUTHORIZED SIGNERS. Agent shall have received certified copies of the
Declaration of Trust of
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Lexington and a copy of the Partnership Agreement and Certificate of Limited
Partnership or Certificate of Incorporation and by laws or other organizational
documents of each Borrower and Guarantor (as appropriate) and all resolutions of
the Board of Trustees of Lexington and a certificate of partnership, corporate
or limited liability company action of each Borrower authorizing the
transactions described herein and evidencing the due authorization, execution
and delivery of and this Agreement and the other Loan Documents, and all
required approvals, if any, of Governmental Authorities with respect to this
Agreement and the other Loan Documents. The Agent shall have received from each
of the Borrowers and for each of the Guarantors an incumbency certificate, dated
as of the Closing Date, signed by a duly authorized offer of such Person and
giving the name of each individual who shall be authorized: (a) to sign, in the
name and on behalf of such Person, each of the Loan Documents to which such
person is or is to be come a party; (b) in the case of the Borrowers'
Representative, to submit Notices of Borrowings on behalf of the Borrowers; and
(c) in the case of the Borrower's Representative, to give notices to take other
action on behalf of the Borrowers or Guarantors under the Loan Documents.
(f) CERTIFICATIONS FROM GOVERNMENT OFFICIALS; UCC SEARCHES. The
Agent shall have received (i) certifications from government officials
evidencing the legal existence and good standing of each Borrower and any
Guarantor in its state of organization and as to the foreign qualification of
each Borrower or Guarantor in the respective states in which it owns
Unencumbered Eligible Properties, along with a certified copy of the certificate
of limited partnership or certificate of incorporation of each Borrower and
Guarantor, all as of the most recent practicable date; and (ii) UCC Searches
from the appropriate jurisdictions for each Borrower and Guarantor with respect
to the Unencumbered Eligible Properties.
(g) UNENCUMBERED ELIGIBLE PROPERTIES. Subject to the provisions of
Section 2.19(b)(xviii), Agent shall have received and Requisite Lenders shall
have approved or shall have been deemed to have approved all information
specified in Section 2.19 (other than Section 2.19(b)(xix)) and each shall have
such access to each of the Unencumbered Eligible Properties as it shall have
requested.
(h) CERTIFICATES OF INSURANCE. Agent shall have received (a) current
certificates of insurance as to all of the insurance maintained by each Borrower
on Property (including flood insurance if applicable) from the insurer or an
independent insurance broker, identifying insurers, types of insurance,
insurance limits, and policy terms; and (b) such further information and
certificates from the Borrowers, their insurers and insurance brokers as the
Agent may reasonably request.
(i) ESTOPPEL CERTIFICATES. Unless waived or receipt is deferred by
Agent, an original copy of an estoppel certificate executed by each tenant and
each lease guarantor in respect of each Approved Lease in the form attached
hereto as Exhibit P to this Agreement or as may otherwise be accepted by the
Agent in its reasonable discretion.
(j) NO MATERIAL ADVERSE EFFECT. No Material Adverse Effect shall
have occurred.
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(k) SOLVENCY OF EACH BORROWER AND GUARANTOR. Both after and
immediately before the making of the Loan on any Funding Date, each Borrower and
Guarantor shall be Solvent.
(l) FEES. 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.
(m) 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.
(n) NOTICE OF BORROWING. Agent shall have received a Notice of
Borrowing as provided in Section 2.5(a), and each other certificate or document
required under Section 2.5 with appropriate insertions and attachments
reasonably satisfactory in form and substance to Agent and its counsel, executed
by a Responsible Officer of Borrowers' Representative.
(o) MAXIMUM AVAILABILITY. After the making of the Loans on any
Funding Date, the Total Unsecured Debt shall not exceed the Maximum
Availability.
(p) PAY-OFF OF EXISTING LOANS. Upon the initial funding of the Loans
the Borrowers shall (a) pay-down that certain $55,000,000 Fleet term loan dated
June 18, 1998, (the "Fleet Term Loan") as the same may be increased, amended or
modified, to an amount acceptable to Fleet and execute and deliver any and all
documents and instruments necessary to terminate and release the security
interests created thereunder to the appropriate extent; and (b) payoff and
terminate that certain $60,000,000 Amended and Restated Revolving Credit
Agreement, dated as of February 20, 1997, (the "Fleet Revolving Loan") between
the Borrowers and Fleet, as Agent, and certain of the Lenders and such Lenders
shall execute, acknowledge and deliver satisfactions and reconveyances of all
mortgages and deeds of trust, UCC-3's, and any and all other documents and
instruments necessary to terminate and release all liens and security interest
created thereunder. Once such indebtedness has been paid in full Borrowers'
original promissory notes shall be marked "canceled" or "paid in full" and
returned to Borrowers' Representative.
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 and Guarantor 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.
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(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 or Guarantor 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) SOLVENCY OF EACH BORROWER AND GUARANTOR. Both after and
immediately before the making of the Loan on any Funding Date, each Borrower and
Guarantor shall be Solvent.
(f) FEES. All obligations of Borrowers and Guarantors 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.
(g) NOTICE OF BORROWING. Agent shall have received a Notice of
Borrowing, and each other certificate or document required under Section 2.5
with appropriate insertions and attachments reasonably satisfactory in form and
substance to Agent and its counsel, executed by a Responsible Officer of
Borrowers' Representative.
(h) MAXIMUM AVAILABILITY. After the making of the Loans on any
Funding Date, the aggregate Total Unsecured Debt shall not exceed the Maximum
Availability.
(i) GUARANTORS. Each Guarantor shall deliver the documents,
agreements, instruments and opinions as the Agent shall require as to such
Guarantor and the Unencumbered Eligible Property owned by such Guarantor that
are required to be delivered by the Borrowers as of the Closing Date pursuant to
Sections 5.1(b) and (d) through (j).
(j) NEW UNENCUMBERED ELIGIBLE PROPERTIES. Borrowers' Representative
shall have complied with Section 5.1(g),(h) and (i) for any Unencumbered
Eligible Property Applications submitted after the Closing Date.
Each submission of a Notice of Borrowing with respect to any Loan and each
acceptance by a Borrower of the proceeds of each Loan made hereunder, shall
constitute a representation and warranty by each Borrower and Guarantor as of
the date of funding in respect of such Loan, 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
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the facts, circumstances or laws relevant to the conditions precedent set forth
in paragraphs (d), (e), (f), and (k) of Section 5.1.
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 and shall cause each
Guarantor (to the extent applicable) to:
6.1. FINANCIAL STATEMENTS. Furnish to Agent or cause Borrowers'
Representative to furnish to Agent, whereupon Agent shall furnish copies to each
Lender:
(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 material qualification by its 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
Unencumbered 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 disclosed therein and for normal year-end adjustments).
6.2. CERTIFICATES; OTHER INFORMATION. Furnish to Agent or cause Borrowers'
Representative to furnish to each Agent, whereupon Agent shall furnish copies to
each Lender:
(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 he or she has no knowledge of any Default or
Event of Default except as specified in such certificate, (ii) a Certificate of
Covenant Compliance, (iii) a Certificate of Unencumbered Eligible Properties;
Maximum Availability and Current Availability and (iv) that the representations
and warranties
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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
delivery.
(b) (i) whenever additional debt in excess of $10,000,000 is
incurred by any Borrower or Guarantor, a Certificate of Total Debt to
Capitalized Value; (ii) upon the sale of any Property owned by a Borrower or
Guarantor, a Certificate of Total Debt to Capitalized Value and an updated
Certificate of Unencumbered Eligible Properties; Maximum Availability and
Current Availability, and (iii) at any other time as Borrowers' Representative
wishes to submit an updated Certificate of Total Debt to Capitalized Value or
Certificate of Unencumbered Eligible Properties, Maximum Availability and
Current Availability.
(c) within ten days of receipt thereof, copies of any financial
statements or other information furnished to a Borrower or Guarantor 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 its 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) upon request by Agent, 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 related
correspondence;
(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 its independent public accounting
firm or such other national accounting firm which is a "Big 5" firm or otherwise
reasonably acceptable to Agent; and
(h) promptly thereafter, such additional financial and other
information respecting the financial or other condition of any Borrower or
Guarantor or the status or condition of the Unencumbered Eligible Properties or
the operation thereof which such Borrower or Guarantor is entitled to or can
otherwise reasonably obtain and as Agent may from time to time reasonably
request.
6.3 PUNCTUAL PAYMENT. The Borrowers will duly and punctually pay or cause
to be paid the principal and interest on the Loans and all interest, fees,
charges and other amounts provided for in this Agreement and the other Loan
Documents, all in accordance with the terms of this Agreement and the Notes, and
the other Loan Documents.
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6.4. PAYMENT OF OTHER 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 Guarantor or where the failure to do
so does not violate Section 8.1(e).
6.5. 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.
6.6. LEASES. (a) Maintain the Approved Leases and any Financeable Ground
Lease in full force and effect and enforce the obligations of the tenants under
the Approved Leases and the landlord under each Financeable Ground Lease, in a
timely manner and obtain the consent of the Requisite Lender's in connection
with any 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
Financeable Ground Lease (as appropriate) which alone or together with any other
such change or waiver could reasonably be expected to have a Material Adverse
Effect on such Unencumbered Eligible Property; and (b) give notice to Agent,
together with a copy thereof, of each renewal, amendment, modification or
termination of the Approved Leases or any Financeable Ground Lease.
6.7. MAINTENANCE OF UNENCUMBERED ELIGIBLE PROPERTY, INSURANCE. Keep or
cause the tenants to keep all Unencumbered Eligible Property in good condition,
working order and repair; maintain or cause the tenants of its Unencumbered
Eligible Properties to maintain with financially sound and reputable insurance
companies, such hazard, liability and other insurance with respect to its
Unencumbered Eligible Property and its business against such casualties and
contingencies in amounts and minimum scope of coverage as shall be in accordance
with the general practices of businesses having similar operations in similar
geographic location; and furnish to Agent, on the Closing Date and upon written
request, full information as to the insurance carried.
6.8. 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 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 Unencumbered Eligible
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.
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6.9. NOTICES. Promptly, and in any event within ten (10) Business Days
after an officer of any Borrower or Guarantor 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) Approved Lease or any other Contractual Obligation of or in favor of any
Borrower or Guarantor which is reasonably likely to have a Material Adverse
Effect or (b) Financeable 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 pending or any judgment against
any Borrower, Guarantor or Unencumbered Eligible Property 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; or
(d) 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.
(e) of any setoff, claims, withholdings or other defenses to which
any of the Unencumbered Eligible Properties are subject, which (i) would have a
Material Adverse Effect on (x) the business, assets or financial condition of
any Borrower, any Guarantor or any of their respective Subsidiaries, or (y) the
value of such Unencumbered Eligible Property, or (ii) with respect to such
Unencumbered Eligible Property, which is not a Permitted Exception or a
Customary Permitted Lien.
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 or Guarantor proposes to take with respect
thereto.
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. ENVIRONMENTAL ACTIONS.
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(a) 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,
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") or any violation of any Environmental
Law. 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.
(b) RESPONSE ACTIONS. Each Borrower and Guarantor covenants and
agrees that if any Release or disposal of Hazardous Material shall occur or
shall have occurred on any Real Property owned by it, such Borrower or Guarantor
will cause the prompt containment and removal of such Hazardous Material and
remediation of such Real Property as necessary to comply with all Environmental
Laws or to preserve the value of such Real Property.
(c) ENVIRONMENTAL ASSESSMENTS. If the Requisite Lenders have
reasonable grounds to believe that a material environmental event has occurred
with respect to any Unencumbered Eligible Property, after reasonable notice by
the Agent, whether or not a Default
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or an Event of Default shall have occurred, the Requisite Lenders may determine
that the affected Unencumbered Eligible Property no longer qualifies as an
Unencumbered Eligible Property; provided that prior to making such
determination, the Agent shall give the Borrower's Representative (i) reasonable
notice and the opportunity to obtain one or more environmental assessments or
audits of such Unencumbered Eligible Property prepared by a hydrogeologist, an
independent engineer or other qualified consultant or expert approved by the
Agent, which approval will not be unreasonably withheld, to evaluate or confirm
(A) whether any Release of Hazardous Materials has occurred in the soil or water
at such Unencumbered Eligible Property and (B) whether the use and operation of
such Unencumbered Eligible Property materially complies with all Environmental
Laws (including not being subject to a matter that is a material environmental
event) and (ii) if such assessments or audits discloses that a Release has
occurred, a reasonable period to clean up or remediate such condition in
accordance with applicable Environmental Laws unless such Release could
reasonably be expected to have a Material Adverse Effect on the operation, value
or financeability of such Property, in which event the consent of the Requisite
Lenders must be obtained. Such assessment will then be used by the Requisite
Lenders to determine whether a Material Adverse Effect has in fact occurred with
respect to such Unencumbered Property. All such environmental assessments shall
be at the sole cost and expense of the Borrowers.
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. NYSE LISTING. Cause Lexington at all times to keep its common stock
duly listed on the NYSE and to file all reports on a timely basis required by
the NYSE.
6.14. OBLIGATIONS IN EXCESS OF MAXIMUM AVAILABILITY. Except as otherwise
provided in Section 2.9(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' Representative of same.
6.15. MANAGEMENT OF BORROWER AND UNENCUMBERED ELIGIBLE PROPERTY. Insure
that the management of Lexington shall be self-directed and self-administered.
6.16. SUBORDINATION OF PAYABLES TO AFFILIATES. After the occurrence and
continuance of a Default or Event of Default, make no payments on any loans owed
by any Borrower or Guarantor 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.
6.17. SUBORDINATED DEBT. Not amend, modify or obtain a waiver of any
provision of any document or instrument evidencing or relating to subordinated
indebtedness (including, but
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not limited to the $25,000,000 of exchangeable notes issued by LCIF in March,
1997) which would move up the maturity date on such subordinated indebtedness
prior to the Revolving Credit Termination Date or otherwise have a Material
Adverse Effect on the Lenders, or purchase, redeem (except redemptions made in
connection with the conversion of any subordinate indebtedness to preferred
stock or common stock pursuant to the terms of the documentation evidencing such
subordinated indebtedness), retire or otherwise acquire or make any payment or
prepayment of the principal of or any other amount owing in respect of any
subordinated indebtedness except for payments (but not prepayments) permitted or
required under the present provisions of the documentation evidencing the
subordinated indebtedness (without amendment) and redemptions of the
exchangeable notes and prepayments made with proceeds of the Loans, or, as to
subordinated indebtedness incurred after the Closing Date, under the provisions
of documentation approved by the Requisite Lenders.
6.18. 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 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
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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
(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.
6.19. 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.
6.20. 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 on an Unencumbered Eligible
Property (other than a Lien permitted by Section 7.7) ; 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.
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6.21. INTER-BORROWER OR GUARANTOR ADVANCES OF LOAN Proceeds Cause all
transfers of Loan proceeds from one Borrower or Guarantor to another or any
Affiliate or Subsidiary thereof to be documented and treated for all purposes by
the lending and receiving Borrower or Guarantor, Affiliate or Subsidiary as an
intercorporate loan transaction.
6.22. SOLVENCY OF GUARANTORS. Lexington, LCIF or LCIFII shall cause each
of the Guarantors to remain Solvent and shall provide each of the Guarantors
with such funds and assets as such Guarantor shall require in the operation of
its business, all in consideration of such Guarantor's execution and delivery of
its Guaranty.
6.23. NO AMENDMENTS TO CERTAIN DOCUMENTS. The Borrowers will not, and will
not permit any Guarantor to, at any time cause or permit its certificate of
limited partnership, agreement of limited partnership, articles of
incorporation, by-laws or other charter documents, as the case may be, to be
modified, amended or supplemented in any respect whatever, without (in each
case) the express prior written consent or approval of the Required Lenders, if
such changes would adversely affect Lexington's REIT status or otherwise
materially adversely affect the rights of the Agent and the Lenders hereunder or
under any other Loan Document.
6.24. YEAR 2000. The Borrowers and each Guarantor and their Subsidiaries
shall notify the Agent promptly upon detecting any occurrence whereby the
representation contained in Section 4.18 above ceases to be true.
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 and shall not permit any Guarantor to directly or
indirectly:
7.1. FINANCIAL COVENANTS. Fail to comply with the covenants set forth in
this Section 7.1 on a consolidated basis, tested as of the end of each fiscal
quarter.
(a) MINIMUM ESTIMATED NET WORTH OF BORROWERS AND GUARANTORS. Suffer
or permit the Minimum Estimated Net Worth of the Borrowers on a consolidated
basis to be less than the aggregate of (i) $225,000,000, 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.
(b) DEBT SERVICE COVERAGE. Suffer or permit the ratio of EBIDA less
non-incremental revenue generating capital expenditures to debt service
obligations (including principal and interest on the Loans) for the two (2) most
recent fiscal quarters to be (i) less than 1.65:1.0 from the date of closing
through the covenant calculation date of December 31, 1998 and (ii) less than
1.75:1.0 from the covenant calculation date of March 31, 1999 through the
Revolving Credit Termination Date, all as determined within 60 days of the close
of each fiscal quarter.
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(c) MAXIMUM TOTAL DEBT TO CAPITALIZED VALUE. Suffer or permit total
debt or guarantees in respect of money borrowed by the Borrowers or the
Guarantors (without duplication) on a consolidated basis ("TOTAL DEBT") to
Capitalized Value to exceed 55%.
(d) MINIMUM UNENCUMBERED LIQUIDITY. Suffer or permit the total sum
of (i) unrestricted cash, (ii) unrestricted Cash Equivalents and (iii) Current
Availability under the Maximum Revolving Credit Commitment, to be less than
$5,000,000 on a consolidated basis.
(e) MAXIMUM SECURED RECOURSE DEBT TO CAPITALIZED VALUE. Suffer or
permit secured Recourse debt in respect of money borrowed or guarantees in
respect thereof by the Borrowers and Guarantors on a consolidated basis to
exceed 15% of Capitalized Value. The maximum Loan to Value of secured Recourse
debt for any Property as of the date such secured Recourse debt is incurred,
other than the three (3) Exel Logistic, Inc. properties located in New
Kingstown, Pennsylvania and Mechanicsberg, Pennsylvania, shall not exceed 75%
(determined by multiplying the net operating income for the two (2) most recent
fiscal quarters for such Property as of the date such secured Recourse debt is
incurred by two (2) and dividing by 9.5%). Such net operating income shall be
adjusted for any newly acquired Property or any Property as to which two (2)
fiscal quarters of earnings information is not available in accordance with the
last two (2) sentences of Section 7.1(c) above.
(f) MAXIMUM PERMITTED INVESTMENTS. Suffer or permit investments in
(i) notes or mortgages or (ii) unimproved real estate to exceed 5% of
Capitalized Value in each case.
(g) INTEREST RATE PROTECTION. Fail to maintain in effect interest
rate protection arrangements, in form and substance reasonably satisfactory to
Agent, for all variable rate (other than Absolute Rate Competitive Bid Loans
with maturity dates in excess of six (6) months) Indebtedness in excess of 12.5%
of Capitalized 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 and so long as variable rate loans shall be less than 12.5% of
Capitalized 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 Capitalized
Value.
(i) MINIMUM FIXED CHARGE COVERAGE. Suffer or permit the ratio of
EBIDA less non-incremental revenue generating capital expenditures to Debt
Service plus dividends on Preferred Stock or other preferred securities for the
two (2) most recent fiscal quarters to be less than 1.50 to 1.0.
(j) MAXIMUM SECURED DEBT TO CAPITALIZED VALUE. Suffer or permit
secured debt or guarantees in respect of money borrowed by the Borrowers and the
Guarantors on a consolidated basis to exceed (i) 45% of Capitalized Value from
the date of closing through
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December 30, 1998 and (ii) 40% of Capitalized Value from December 31, 1998
through the Revolving Credit Termination Date.
(k) TOTAL UNSECURED DEBT. Suffer or permit Total Unsecured Debt to
exceed Maximum Availability (except as reduced as provided in Section 2.9(c))
for Excess Outstandings.
(l) LIMITATIONS ON DISTRIBUTIONS TO FFO. Suffer or permit
distributions to shareholders of Lexington to exceed 95% of Lexington's funds
from operations over the four (4) most recent fiscal quarters. Notwithstanding
the foregoing, Lexington may make distributions that are necessary to preserve
its REIT status.
(m) JOINT VENTURE OWNERSHIP INTEREST. Suffer or permit Joint Venture
Ownership Interest Value to exceed 15% of Capitalized Value at the end of any
fiscal quarter.
7.2 COVENANT CALCULATIONS.
(a) For purposes of Maximum Availability and Section 7.1 hereof
(with the exception of subsections 7.1(b) and 7.1(i)), EBIDA and Unencumbered
Eligible Property NOI (and all defined terms and calculations using such terms)
shall be adjusted to (i) deduct the actual results of any Property disposed of
by a Borrower or Guarantor during the relevant fiscal period, and (ii) include
the pro forma results of any Property acquired by a Borrower or Guarantor during
the relevant fiscal period, with such pro forma results being calculated by (x)
using the Borrower's or Guarantor's pro forma projections for such acquired
Property, subject to the Agent's reasonable approval, if such Property has been
owned by a Borrower or Guarantor for less than one complete fiscal quarter or if
such Property involves a sale/leaseback or new construction or (y) using the
actual results for such acquired Property and adjusting such results for the
appropriate period of time required by the applicable financial covenant, if
such Property has been owned by a Borrower or a Guarantor for at least one
complete fiscal quarter.
7.3. RESTRICTED PAYMENTS.
(a) Declare, make or pay any Restricted Payment while any Default
under Section 2.9(c) 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 and except for minimum distributions necessary to maintain
Lexington's REIT status; or
(b) While any Default under Section 2.9(c) 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.
7.4. MERGER; SALE OF ASSETS; TERMINATION AND OTHER ACTIONS.
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(a) Become a party to any merger, consolidation or reorganization
without the approval of the Requisite Lenders, except that so long as no Default
or Event of Default has occurred and is continuing, or would occur after giving
effect thereto, the merger, consolidation or reorganization of one or more
Persons with or into any Borrower, any Guarantor, or any wholly-owned
Subsidiary, shall be permitted if such action is not hostile, any Borrower, any
Guarantor, or any wholly-owned Subsidiary, as the case may be, is the surviving
entity and such merger, consolidation or reorganization does not cause a breach
of Section 6.15; (b) convey, sell, lease or otherwise dispose of (i) any of the
Unencumbered Eligible Properties unless withdrawn under Section 2.20 or (ii) any
substantial part of its property or assets (other than the Unencumbered Eligible
Properties) unless, in the case of this clause (b), no Default or Event of
Default results therefrom. Notwithstanding the foregoing, LCIF and LCIFII may be
consolidated with or merged into each other, provided that Borrowers'
Representative gives Agent at least ten (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
reflect an assumption by the survivor of the other's obligations hereunder prior
to the effective date of such merger.
7.5. 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 or Guarantor, other than (i) in the ordinary course of business and
(ii) for fair consideration and on terms no less favorable to any Borrower or
Guarantor than are available in an arm's-length transaction from unaffiliated
third parties.
7.6. ACCOUNTING CHANGES. Make any significant change in accounting
treatment and reporting practices, except as required by GAAP or with which
Borrowers' or Guarantors' independent certified public accountants have agreed.
Such Borrower or Guarantor 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 or Guarantor.
7.7. NO LIENS. Until withdrawal under Section 2.20, suffer or permit after
the date hereof any Lien on any Unencumbered Eligible Property other than
Permitted Exceptions or Customary Permitted Liens.
7.8. FISCAL YEAR. Change the fiscal year end of any Borrower or Guarantor
from December 31 to any other date without the prior written consent of Agent.
7.9. CHIEF EXECUTIVE OFFICE. Change the name of any Borrower or Guarantor
or the chief executive office of such Borrower or Guarantor or the address where
such Borrower's or Guarantor's books and records are maintained unless such
Borrower or Guarantor gives Agent prompt written notice of any such change
thereafter.
7.10. 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.
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7.11. LIMITATIONS ON CERTAIN ACTIVITIES. Except in connection with
withdrawals of Unencumbered Eligible Properties under Section 2.20 or sales,
transfers or encumbrances to another Borrower or Guarantor (i) no sale,
transfer, pledge or assignment of more than 49% of the ownership interests in
any of the Borrowers or Guarantors excluding Lexington; and (ii) no material
changes in any Borrower's or Guarantor's business of owning, managing and
investing in predominantly (75% or more by value) net-lease, office, industrial
and retail properties.
7.12. DISTRIBUTIONS. 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.
7.13. ERISA. No Borrower, Guarantor 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;
(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.
7.14 COMPLIANCE WITH ENVIRONMENTAL LAWS. Do any of the following: (a) use
any of its Real Property or any portion thereof as a facility for the handling,
processing, storage or disposal of Hazardous Materials except for quantities of
Hazardous Materials used in the ordinary course of business and in compliance
with all applicable Environmental Laws, (b) cause or permit to be located on any
of its Real Property any underground tank or other underground storage
receptacle
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for Hazardous Materials except in full compliance with Environmental Laws, (c)
generate any Hazardous Materials on any of its Real Property except in full
compliance with Environmental Laws, or (d) conduct any activity at any Real
Property or use any Real Property in any manner so as to cause a Release or a
violation of any Environmental Law; provided that a breach of this covenant
shall result in the exclusion of the affected Real Property from the calculation
of the covenants set forth in Section 7.1, but shall only constitute an Event of
Default hereof if such breach has a Material Adverse Effect on the Borrowers or
Guarantors, taken as a whole, or materially impairs the ability of any Borrower
or Guarantor to fulfill their obligations to the Lenders under the Loan
Documents.
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 or Guarantor shall fail to pay any
principal of or interest on any Note or Loan 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 Agent; or
(b) REPRESENTATIONS AND WARRANTIES. Any representation or warranty
made or deemed made by any Borrower or Guarantor 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 2.9 (c), 2.9 (d) or 6.14 and such default
shall continue unremedied 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' Representative by Agent; or
(d) CERTAIN OTHER COVENANT DEFAULTS. Any Borrower or Guarantor 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 or Guarantor 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 or Guarantor 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 any recourse
Indebtedness, exceeds $5,000,000, beyond the period of grace, if any, provided
in the instrument or agreement under which such recourse Indebtedness was
created; or (ii) default beyond applicable grace periods in the observance or
performance of
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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.
(f) QUALIFICATION AS REIT. Agent shall have determined in good
faith, and shall have so given notice to Borrowers' Representative 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' Representative shall have furnished Agent with an opinion of
Borrowers' Representative'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 Guarantor; or
(h) ERISA. (i) Any Borrower, Guarantor 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 or Guarantor and any of the
foregoing are not corrected or cured within 30 days after notice to such
Borrower or Guarantor; or
(i) CERTAIN JUDGMENTS. One or more judgments or decrees shall be
entered against any Borrower or Guarantor involving in the aggregate a liability
(not paid or fully covered by insurance) of $5,000,000 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) MANAGEMENT. Prior to the Revolving Credit Termination Date any
change in the identity of the persons holding a majority of the Board of
Trustees of Lexington (other than due to death, retirement, disability or
similar causes and so long as the replacement trustee is approved by the
remaining trustees who were trustees prior to such change in the composition of
the Board of Trustees) without Requisite Lender Approval.
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(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
any 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 or Guarantor,
Borrowers' Representative shall not have taken such steps as may be reasonably
necessary to enforce such Loan Document promptly after notice thereof by Agent.
8.2 REMEDIES. In the event that one or more Events of Default shall have
occurred and be continuing, then (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, any of the following actions
may be taken: (a) Agent may (and upon the written instructions of the Requisite
Lenders shall), by notice to Borrowers' Representative, declare the Revolving
Credit Commitment to be terminated forthwith, whereupon the Revolving Credit
Commitment shall immediately terminate; (b) Agent may (and upon the written
instructions of the Requisite Lenders shall), by notice of default to Borrowers'
Representative, 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 or (c) Agent may exercise any other right or remedy
available at law or in equity or by statute. Except as expressly provided above
in Section 8.1, presentment, demand, protest and all other notices of any kind
are hereby expressly waived; or
8.3. ANNULMENT OF ACCELERATION. If payment on the Loans and any Note is
accelerated in accordance with Section 8.2 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' Representative 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 8.3 is for the sole benefit of the Agent and is
not intended to benefit any Borrower or Guarantor and does not give any Borrower
or Guarantor 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.
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8.4. COOPERATION BY EACH BORROWER AND GUARANTOR. To the extent that it
lawfully may, each Borrower agrees and shall cause each Guarantor to agree 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 or Guarantor 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 or
Guarantor. The Agent may perform any of its duties hereunder, or under the Loan
Documents, by or through its agents or employees. Agent shall administer the
Loans in the same manner as Agent administers loans for its own account.
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 or Guarantor in connection with the
making and the continuance of the Loans hereunder and shall make its own
appraisal of the creditworthiness of each Borrower or Guarantor, 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 absolutely entitled to refrain from
taking any action or to withhold any approval and shall not be
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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 2.11, 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 Guarantor 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
Guarantor 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 respect to all matters
pertaining to this Agreement or any of the Loan Documents and
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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 or Guarantor, 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 or Guarantor, any creditor of Borrower or Guarantor 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 or Guarantor 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'
Representative 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, so long as no Default or Event of Default shall have occurred and be
continuing, the Requisite Lenders shall have received the prior written consent
of Borrowers' Representative 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,
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so long as no Default or Event of Default shall have occurred and be continuing,
shall be reasonably acceptable to Borrowers' Representative who shall serve as
Agent until such time, if any, as the Lenders appoint a successor Agent as
provided above.
(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' Representative 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 Guarantor 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 UNENCUMBERED
ELIGIBLE PROPERTIES.
(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 Unanimous
Lender Approval. 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' Representative 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 Unanimous Lender
Approval, (y) within five (5) Business Days with respect to the acceptance of
additional Unencumbered 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
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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 Unanimous Lender Approval, 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 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 may make, and shall be reimbursed for, Protective
Advance(s) during any one calendar year with respect to each Unencumbered
Eligible Property up to the sum of (i) amounts expended to pay real estate
taxes, assessments and governmental charges or levies imposed upon such
Unencumbered Eligible Property upon the occurrence of an Event of Default with
respect thereto by Borrowers which is not cured within five (5) days after
notice from Agent, (ii) amounts expended to pay insurance premiums for policies
of insurance related to such Unencumbered Eligible Property, and (iii) Fifty
Thousand Dollars ($50,000) to the extent the Loan Documents now or hereafter
give the Agency the authority to do so. Protective Advances in excess of said
sum during any calendar year for any Unencumbered Eligible 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 2.7(c) up to a one (1) time during the term of this
Agreement, including any extensions and thereafter at the discretion of the
Agent.
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 or Guarantor 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), 2.13, 2.16 and
2.17) 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 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), 2.13,
2.16 and 2.17), (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
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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 and Guarantor 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 2.11(b)(v) or paid to such
Defaulting Lender upon the Defaulting Lender's curing of its default.
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
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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'
Representative 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' Representative who has agreed to accept such an
assignment in accordance with the terms of Section 9.14(b), provided however,
that Borrowers' Representative 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 Borrowers' Representative (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.
(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 Borrowers' Representative (which approval
shall not be
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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 $25,000,000.
(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' Representative 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' Representatives and the other
Lenders.
(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
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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), and (C) postponement of the
Revolving Credit Termination Date (other than pursuant to Section 2.1(c)
hereof).
(f) INFORMATION REGARDING ANY BORROWER OR Guarantor. 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 or Guarantor furnished to
such Lender by the Agent or by or on behalf of such Borrower or Guarantor ;
provided that, prior to any such disclosure, such assignee or participant, or
proposed assignee or participant, shall agree to preserve in accordance with
Section 10.15 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.
(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 be domiciled and organized in an OECD country and deliver to the
Borrowers' Representative 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
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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' AND GUARANTORS' 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
Guarantors or reduce the rights or benefits of the Borrowers or Guarantors
hereunder without the prior written consent of the Borrowers' Representative.
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' Representative; 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 or Guarantor 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 or Guarantor in any
specific instance shall entitle such Borrower or Guarantor 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),
(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
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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 2.11(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 or Guarantor,
(viii) waiver of any Event of Default described in Sections
8.1(a) or (g);
(ix) the release of any Borrower or Guarantor except as
provided in this Agreement;
(x) change in the definition of Maximum Availability or any of
the defined terms used in such definition.
(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 (or such longer period as may be expressly provided herein) 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 MARSHALING; 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 Guarantor or any other party or against or in payment of any or
all of the Obligations. To the extent that such Borrower or Guarantor makes a
payment or payments to the Agent, the Lenders or the Issuing Banks or any such
Person 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
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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
special, exemplary, consequential or punitive damages other than, or in addition
to, actual 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. Each
Borrower and each Borrower on behalf of each of the Guarantors (a) certifies
that no representative, agent or attorney of any Lender or the Agent has
represented, expressly or otherwise, that such Lender or the Agent would not, in
the event of litigation, seek to enforce the foregoing waivers and (b)
acknowledge that the Agent and the Lenders have been induced to enter into this
Agreement and the other Loan Documents to which they are parties by, among other
things, the waivers and certifications contained herein.
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 or Guarantor 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
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or claims accruing in favor of any such parties against any Borrower or
Guarantor 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 deemed
partners or joint venturers with any Borrower or Guarantor or any of its
Affiliates or Subsidiaries. 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 NEW YORK (EXCLUDING THE LAWS APPLICABLE
TO CONFLICTS OR CHOICE OF LAW).
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 ON BEHALF OF ITSELF AND EACH GUARANTOR HEREBY
IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE PERSONAL JURISDICTION OF ANY STATE
OR FEDERAL COURT IN THE STATE OF NEW YORK LOCATED IN THE BOROUGH OF MANHATTAN 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' REPRESENTATIVE AT
ITS ADDRESS SET FORTH HEREIN OR TO SUCH OTHER ADDRESS OF WHICH AGENT 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'
REPRESENTATIVE 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)
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT
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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 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 AND GUARANTOR HEREBY IRREVOCABLY DESIGNATES BORROWERS'
REPRESENTATIVE 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 NEW YORK AND
BORROWERS' REPRESENTATIVE, 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 AND GUARANTOR AGREES PROMPTLY TO DESIGNATE ANOTHER AGENT FOR SERVICE OF
PROCESS IN NEW YORK CITY, NEW YORK, SATISFACTORY TO AGENT UNDER THIS AGREEMENT,
TO SERVE IN PLACE OF BORROWERS' REPRESENTATIVE AND DELIVER TO AGENT WRITTEN
EVIDENCE OF SUCH SUBSTITUTE AGENT'S ACCEPTANCE OF SUCH DESIGNATION. BORROWERS'
REPRESENTATIVE SHALL NEVERTHELESS CONTINUE TO SERVE AS AGENT FOR SERVICE OF
PROCESS UNTIL ITS SUCCESSOR IS DULY APPOINTED.
10.9 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 or Guarantor or the
Borrowers' Representative: c/o Lexington Corporate Properties Trust, 355
Lexington Avenue, New York, New York 10017 Attention : T. Wilson Eglin with a
copy to John P. Howitt, Esq.,
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Paul, Hastings, Janofsky & Walker LLP, Thirty-First Floor, 399 Park Avenue, New
York, NY 10022; or to (y) Agent: Fleet National Bank, Suite 800, 111 Westminster
Street, Providence, Rhode Island 02903 Attention: Mark E. Dalton, Senior Vice
President with a copy to Lorne W. McDougall, Esq., Edwards & Angell, LLP, 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, One Federal Street, 7th Floor, Boston,
Massachusetts 02211, Mail Code MAOFD07C, Attn: John Mann. By wire: Fleet
National Bank, ABA #011500010, Credit Account #151035303101, Re: Lexington Attn:
John Mann (617) 346-0429.
(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' Representative specify
or change its account and address for payment instructions hereunder.
10.10 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.
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10.11 SURVIVAL. The obligations of each Borrower under Sections 2.13,
2.16, 2.17, 2.18, 6.11, 10.12 and 10.14 (and all other indemnification and
expense reimbursement obligations of 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. The receipt by Borrowers' Representative, prior to the
expiration of the above three (3) and five (5) year limitation periods, of a
notice of any liability, claim, loss, cost or expense arising from the
obligations of Borrowers referenced above shall toll the running of the above
limitation periods with regard to such liability, claim, loss, cost or expense.
10.12 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 (the
"Indemnified Parties") 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, reasonable costs,
reasonable 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 any of the Indemnified
Parties (all the foregoing, collectively, the "INDEMNIFIED LIABILITIES").
10.13 FURTHER ASSURANCES. Each Borrower and Guarantor 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
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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; and (c)
provide such certificates, documents, reports, information, affidavits and other
instruments and do such further acts deemed reasonably necessary, desirable or
proper by Agent to comply with the requirements of any agency having
jurisdiction over Agent.
10.14 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.
10.15 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
10.15. In no event shall Agent or any Lender be obligated or required to return
any materials furnished by any Borrower.
10.16 SET-OFFS. In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any rights, upon
the occurrence and during the continuance of any Event of Default, each Lender
is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to any Borrower or to any other
Person except as may be required by law or otherwise expressly required hereby,
any such other notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), other than deposits held for the benefit of third
parties, and any other indebtedness at any time held or owing by such Lender
(including, without limitation, by branches and agencies of such Lender wherever
located) to or for the credit of the account of any Borrower against and on
account of the Obligations of such Borrower then due and payable to such Lender
under this Agreement or under any of the other Loan Documents, including,
without limitation, all interests in Obligations purchased by such Lender. Each
Lender agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Note held by it which
is greater than the proportion received by any other Lender in respect of the
aggregate amount of principal and interest due with respect to any Note held by
such other Lender, the Lender receiving such proportionally greater payment
shall purchase such participations in the Notes held by the other Lender, and
such other adjustments shall be made, as may be required so that all such
payments of
83
<PAGE> 91
principal and interest with respect to the Notes held by the Lenders shall be
shared by the Lenders pro rata; provided that noting in this Section shall
impair the right of any Lender to exercise any right of set-off or counterclaim
it may have and to apply the amount subject to such exercise to the payment of
indebtedness of such Borrower other than its indebtedness under the Notes. Each
Borrower agrees, to the fullest extent that it may effectively do so under
applicable law, that any holder of a participation in a Note acquired pursuant
to the foregoing arrangements, may exercise rights of set-off counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of such Borrower in the amount of such
participation.
10.17 SYNDICATION The Borrowers acknowledge that the Agent intends, and
shall have the right subject to Section 10.1, by itself or through its
Affiliates, to syndicate or enter into co-lending arrangements with respect to
the Loans and the Maximum Revolving Credit Commitment pursuant to this Section
10.17, and the Borrowers agree subject to Section 10.1 to cooperate in all
reasonable respects with the Agent's and its Affiliate's syndication and/or
co-lending efforts, such cooperation to include, without limitation, the
provision of information reasonably requested by potential syndicate members.
SECTION 11. THE BORROWERS' REPRESENTATIVE
11.1. APPOINTMENT OF BORROWERS' REPRESENTATIVE.
(a) Each Borrower hereby irrevocably designates and appoints
Lexington (sometimes referred to in this Agreement as Borrowers'
Representative), 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' Representative 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' Representative 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' Representative in connection with the Loan Documents.
- the next page is the signature page -
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<PAGE> 92
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:
LEXINGTON CORPORATE PROPERTIES TRUST
By: /s/ T. Wilson Eglin
---------------------
T. Wilson Eglin
Its: President
LEPERCQ CORPORATE INCOME FUND L.P.
BY: LEX GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
---------------------
T. Wilson Eglin
Its: Vice President
LEPERCQ CORPORATE INCOME FUND II L.P.
BY: LEX GP-1, Inc., its general
By: /s/ T. Wilson Eglin
---------------------
T. Wilson Eglin
Its: Vice President
UNION HILLS ASSOCIATES
BY: Lepercq Corporate Income
Fund, L.P., its general partner
By: Lex GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
---------------------
T. Wilson Eglin
Its: Vice President
LEX GP-1, INC.
By: /s/ T. Wilson Eglin
---------------------
T. Wilson Eglin
Its: Vice President
85
<PAGE> 93
LEX LP-1, INC.
By: /s/ T. Wilson Eglin
---------------------
T. Wilson Eglin
Its: Vice President
PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP
BY: Lepercq Corporate Income Fund II, L.P.,
Its general partner
By: LEX GP-1, Inc., its general partner
By: /s/ T. Wilson Eglin
---------------------
T. Wilson Eglin
Its: Vice President
SAVANNAH WATERFRONT HOTEL, LLC.
BY: Lepercq Corporate Income Fund, L.P.,
Its general partner
By: LEX GP-1, Inc.
By: /s/ T. Wilson Eglin
---------------------
T. Wilson Eglin
Its: Vice President
LEX GP-1, INC.
By: /s/ T. Wilson Eglin
---------------------
T. Wilson Eglin
Its: President
86
<PAGE> 94
<TABLE>
<S> <C> <C>
LENDERS: ADDRESS: REVOLVING CREDIT
COMMITMENT
FLEET NATIONAL BANK 111 Westminster $25,000,000
Street
Providence, RI 02903
By: /s/ Mark E. Dalton
-------------------
Mark E. Dalton
Senior Vice President
KEYBANK NATIONAL ASSOCIATION 711 Westchester $20,000,000
Avenue
White Plains, NY
10604
By: /s/ Karen E. Miele
-------------------
Karen E. Miele
Vice President
FIRST UNION NATIONAL BANK 301 S. College Street $20,000,000
6th Floor
Charlotte, NC 28288
By: /s/ John A. Schissel
-------------------
John A. Schissel
Vice President
CREDITANSTALT CORPORATE FINANCE, INC. Two Ravinia Drive $20,000,000
Suite 1680
Atlanta, GA 30346
By:/s/ Stephen W. Hipp
-------------------
Stephen W. Hipp
Associate
By: /s/ Robert M. Biringer
-----------------------
Robert M. Biringer
Executive Vice President
CRESTAR BANK 8245 Boone Boulevard $15,000,000
Suite 820
By: /s/ Gregory T. Horstman Vienna, VA 22182
-----------------------
Gregory T. Horstman
Vice President
ADMINISTRATIVE AGENT:
FLEET NATIONAL BANK 111 Westminster Street
Providence, RI 02903
By: /s/ Mark E. Dalton
-------------------
Mark E. Dalton
Senior Vice President
</TABLE>
87
<PAGE> 95
ACKNOWLEDGMENT BY BORROWERS' REPRESENTATIVE
We hereby acknowledge and accept the designation of Borrowers'
Representative and agree to discharge the duties and responsibilities of
Borrowers' Representative as set forth in the Loan Agreement until the Loans are
paid in full.
LEXINGTON CORPORATE PROPERTIES TRUST
By: /s/ T. Wilson Eglin
--------------------
T. Wilson Eglin
Its: President
88
<PAGE> 96
EXHIBIT A
DEFINITIONS
"ABSOLUTE RATE COMPETITIVE BID LOAN" shall have the meaning set forth
in Section 2.6 (c)(i)
"AGENT" means Fleet and each successor agent appointed pursuant to the
terms of Section 9 of this Agreement.
"AGREEMENT" means this Unsecured Revolving Credit Agreement, as
amended, supplemented or modified from time to time in accordance herewith.
"AFFILIATE" means, with respect to a particular Person, any Person
which, directly or indirectly, is in Control of, is Controlled by, or is under
common Control with such particular Person.
"A.M. BEST" MEANS A.M. BEST COMPANY.
"APPLICABLE MARGIN" shall mean (i) in the event Lexington does not
achieve or fails to maintain the Minimum Investment Rating, the respective
percentages per annum determined, at any time, based on the range into which
Lexington's Total Debt to Capitalized Value falls, in accordance with the table
set forth below:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------
Total Debt to Capitalized Value Applicable Margin
------------------------------------------------------------------------------------------------
<S> <C>
Less than or equal to 35% 1.10%
------------------------------------------------------------------------------------------------
Greater than 35% but less than or equal to 45% 1.25%
------------------------------------------------------------------------------------------------
Greater than 45% but less than or equal to 55% 1.375%
------------------------------------------------------------------------------------------------
</TABLE>
(ii) once Lexington achieves and so long as it maintains the Minimum
Investment Rating, the respective percentages per annum determined, at any time,
based on the range into which Lexington's Credit Rating then falls, in
accordance with the table set forth below:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------
Borrower's Credit Rating (S&P/Moody's) Applicable Margin
----------------------------------------------------------------------------------------
<S> <C> <C>
A-/A3 or higher 0.70%
----------------------------------------------------------------------------------------
BBB+/Baal 0.90%
----------------------------------------------------------------------------------------
BBB/Baa2 1.00%
----------------------------------------------------------------------------------------
BBB-/Baa3 1.10%
----------------------------------------------------------------------------------------
</TABLE>
Any change in Lexington's Credit Rating or Total Debt to Capitalized
Value which would cause it to move to a different range in the applicable table
shall effect a change in the Applicable Margin on the Business Day immediately
following the date on which such change occurs.
"APPLICABLE RATE" shall have the meaning set forth in Section 2.7(a)
"APPROVED LEASE" shall mean a triple net lease with a Class I Credit
Tenant or a Class II Credit Tenant (unless otherwise approved by the Requisite
Lenders in their sole and absolute
<PAGE> 97
discretion), covering not less than 80% of the net leaseable area of a Property
and requiring the 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 Property to which it pertains is accepted as
an Unencumbered Eligible Property. 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.
"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.
"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. The Base Rate is a reference rate used by the
Agent in determining interest rates on certain loans and is not intended to be
the lowest rate of interest charged by the Agent or any Lender on any extension
of credit to any debtor.
"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' REPRESENTATIVE" 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 or Guarantor 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 Unencumbered Eligible
Property, 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 or Guarantor unless the same be abandoned by any such
lessee or other occupant or person), together with any and all replacements
thereof and additions thereto.
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<PAGE> 98
"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 or New York, New York, 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 this Agreement, the amount of such obligation at any date shall be the
outstanding amount thereof at such date, determined in accordance with GAAP.
"CAPITALIZED VALUE" means EBIDA for the Borrowers and the Guarantors on
a consolidated basis for the two (2) most recent fiscal quarters multiplied by
two (2) and divided by 9.5%.
"CAPITALIZED VALUE OF UNENCUMBERED ELIGIBLE PROPERTIES" means
Unencumbered Eligible Property NOI for the two (2) most recent fiscal quarters
multiplied by two (2) and divided by 9.5%.
"CASH EQUIVALENT" means (i) commercial paper rated P-1 or better by
Moody's or A-1 or better by S&P 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 S&P or P-1 or better by
Moody's 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.
"CLASS I CREDIT TENANTS" shall mean tenants having and maintaining (or
whose lease obligations are guaranteed on an unconditional basis by a guarantor
who has or maintains) either (i) a minimum long term unsecured debt rating of
BBB-/Baa3 by S&P or Moody's or (ii) a minimum rating of B+ or FPR-7 by A.M.
Best.
"CLASS II CREDIT TENANTS" shall mean tenants having and maintaining (or
whose lease obligations are guaranteed on an unconditional basis by a guarantor
who has or maintains) either (i) a minimum long term unsecured debt rating of
BB-/Ba3 by S&P or Moody's or (ii) a minimum rating of B- or FPR-4 by A.M. Best,
or (iii) a minimum tangible net worth of at least $100,000,000 and a total
liability to tangible net worth ratio (all determined on a GAAP basis) not in
excess of 1.0 to 1.0 or any tenant not meeting such criteria which is approved
in writing by the Requisite Lenders.
"CLOSING DATE" means July 22, 1998.
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<PAGE> 99
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMISSION" means the United States Securities and Exchange Commission
or any successor to the responsibilities of such commission.
"COMMITMENT" means a Revolving Credit Commitment.
"COMMON SHARES" means Lexington's common shares.
"COMPETITIVE BID FACILITY FEE" is defined in Section 2.17(d).
"COMPETITIVE BID LOANS" means a Borrowing hereunder consisting of one
or more Loans made by any of the participating Lenders whose offer to make a
Competitive Bid Loan as part of such Borrowing has been accepted under the
auction bidding procedure described in Section 2.6 hereof.
"COMPETITIVE BID LOAN ACCOUNTS" shall have the meaning set forth in
Section 2.6(b).
"COMPETITIVE BID LOANS ELECTION" means a written election by the
Borrowers' Representative delivered to the Agent, on or after the date Lexington
achieves a Minimum Investment Rating to have all or a portion of the Loans be
Competitive Bid Loans pursuant to Section 2.6 of this Agreement; provided such
election shall only be effective for so long as Lexington maintains a Minimum
Investment Rating.
"COMPETITIVE BID MARGIN" shall have the meaning set forth in Section
2.6(d).
"COMPETITIVE BID NOTES" shall have the meaning set forth in Section
2.6(b)(ii).
"COMPETITIVE BID QUOTE" means an offer by a Lender to make a
Competitive Bid Loan in accordance with Section 2.6(e) hereof.
"COMPETITIVE BID QUOTE REQUEST" shall have the meaning set forth in
Section 2.6(c)(i)
"COMPETITIVE BID RATE" shall have the meaning set forth in Section
2.6(e).
"CONSOLIDATED" OR "CONSOLIDATED" means that term as applied to the
accounts of the Borrowers' 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
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<PAGE> 100
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 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.
"CREDIT RATING" means the lower of the two highest current investment
grade debt ratings assigned to the senior unsecured long term indebtedness of
Lexington by at least two (2) nationally recognized rating agencies, including
either or both of Moody's and S&P, or another nationally recognized rating
agency approved by the Requisite Lenders.
"CURRENT AVAILABILITY" means, at any particular time, the amount by
which the Maximum Availability exceeds the Total Unsecured Debt at such time.
"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 6.20 and with respect to which
adequate reserves or other appropriate provisions are being
maintained in accordance with GAAP;
(ii) Statutory Liens in favor of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other Liens
against any Property of a Borrower, Guarantor or any of its
Subsidiaries imposed by law created in the ordinary course of
business for amounts which, if not resolved in favor of such
Borrower,
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<PAGE> 101
Guarantor or Subsidiary, could not result in a Material
Adverse Effect or which are being contested in good faith by
appropriate proceedings in accordance with Section 6.20 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 or Guarantor has received notice
thereof or which are being contested in good faith by
appropriate proceedings in accordance with Section 6.20;
(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 or
Guarantor who owns such Property or any tenant thereof or
access by the public to such Property;
(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.
"DEBT SERVICE" means the sum of (i) all interest on Indebtedness paid
or payable during the applicable period determined in accordance with GAAP and
(ii) scheduled payments of principal, excluding balloon payments upon maturity,
paid during the applicable period, of the Borrowers and the Guarantors on a
consolidated basis.
"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 2.11(b)(vi).
"DOLLARS" or "$" shall mean lawful currency of the United States of
America.
"EBIDA" means, for any period of time, without duplication, the sum of
(i) the net income of the Borrowers and Guarantors 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, 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 to the extent included in net income. For the
purposes of calculating Capitalized Value
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<PAGE> 102
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 organized in an
OECD country; (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.
"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 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 prepared by a reputable
independent consultant and disclosing no condition which could reasonably be
expected to have a Material Adverse Effect on the operation, value of
financeability or an Unencumbered Eligible Property.
"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.
"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
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<PAGE> 103
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 Base.
"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 (i) 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)
the Applicable Margin.
"EXCESS OUTSTANDINGS" shall have the meaning set forth in Section
2.9(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 2.1(c).
"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 or Guarantor and
equipment located thereon or used in connection therewith and all personality
related thereto and all other real estate interests, owned beneficially by a
Borrower or Guarantor.
"FINANCEABLE GROUND LEASE" means, a ground lease subject to Unanimous
Lender Approval, which must provide protections for a potential leasehold
mortgagee ("Mortgagee")
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which include, amongst other things (i) a remaining term of no less than 25
years from the Closing Date, (ii) that the lease will not be terminated until
the Mortgagee has received notice of a default, has had a reasonable opportunity
to cure or complete foreclosure, and has failed to do so, (iii) a new lease on
the same terms to the Mortgagee as tenant if the ground lease is terminated for
any reason, (iv) non-merger of the fee and leasehold estates, (v) free
transferability of the tenant's interest under the ground lease and (vi) that
insurance proceeds and condemnation awards (from the fee interest as well as the
leasehold interest) will be applied pursuant to the terms of the applicable
leasehold mortgage.
"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 or Guarantor 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.
"FLEET REVOLVING LOAN" shall have the meaning set forth in Section
5.1(p).
"FLEET TERM LOAN" shall have the meaning set forth in Section 5.1(p).
"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 Lexington, an amount equal to net income of Lexington (computed on a
consolidated basis 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 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.
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"GUARANTOR" shall mean any wholly owned Subsidiary of Lexington, LCIF
or LCIFII that is not a Borrower who executes a Guaranty which has not been
released in accordance with the terms of this Agreement.
"GUARANTY" shall mean a Guaranty in the form of Exhibit S executed by a
Guarantor in favor of the Agent and the Lenders.
"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, including Letter of Credit reimbursement
obligations and payments received in consideration for sale of Lexington's stock
when the amount of the stock so sold is determined, and the date of delivery is,
more than one (1) month after receipt of such payment and only to the extent
that the obligation to deliver stock is not payable solely in stock of
Lexington.
"INITIAL FUNDING DATE" means the date on or after 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.
"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
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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 authorized 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, provided that the Interest Payment Date for
Competitive Bid Loans may be the first day of any calendar month during the term
of such Loans so long as interest is paid at least quarterly.
"INTEREST PERIOD" means with respect to each Loan, (a) initially, the
period commencing on the Funding Date of such Loan and ending on the last day of
one of the following periods (as selected by the Borrowers' Representative in a
Notice of Borrowing or as otherwise in accordance with the terms of this
Agreement): (i) for any Base Rate Loan, the last day of the calendar month, (ii)
for any Revolving Credit Eurodollar Rate Loan, 1, 3 or 6 months (provided that
(x) the Interest Period for Revolving Credit Eurodollar Rate Loans may be
shorter than one (1) month in order to consolidate two (2) or more Revolving
Credit Eurodollar Rate Loans and (y) the Interest Period for all Revolving
Credit Eurodollar Rate Loans shall be one (1) month until the earlier of one
hundred twenty (120) days after the Closing Date or the date on which the Agent
completes the syndication of the Maximum Revolving Credit Commitment, as
evidenced by written notice from the Agent to the Borrowers' Representative as
to such completion), (iii) for any Absolute Competitive Bid Loan, up to 12
months, and (iv) for any Eurodollar Competitive Bid Loan, 1,3 or 6 months; and
(b) thereafter, each period commencing at the end of the last day of the
immediately preceding Interest Period applicable to such Loan and ending on the
last day of the applicable period set forth in (a) above as selected by the
Borrowers'
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Representative in a Notice of Continuation/Conversion or as otherwise provided
in accordance with this Agreement; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a Base Rate Loan
would end on a day this is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
(B) if any Interest Period with respect to a Eurodollar Rate
Loan would otherwise end on a day that is not a Business Day, that
Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period
shall end on the immediately preceding Business Day;
(C) if the Borrowers' Representative shall fail to give a
Notice of Continuation/Conversion as provided in Section 2.8(c), the
Borrowers' Representative shall be deemed to have requested a
continuation of the affected Revolving Credit Eurodollar Rate Loan as a
Base Rate Loan subject to the right of the Borrowers' Representative to
submit a subsequent Notice of Conversion/Continuation pursuant to
Section 2.8(c);
(D) any Interest Period relating to any Eurodollar Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to
subparagraph (E) below, end on the last Business Day of a calendar
month; and
(E) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date.
"INTEREST RATE DETERMINATION DATE" means each date for calculating the
Base Rate or the Eurodollar Rate for a Revolving Credit 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.
"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.
"JOINT VENTURE OWNERSHIP INTEREST VALUE" means, as of any date of
determination the greater of (i) book value or (ii), an amount equal to the pro
rata share of EBIDA attributable to the Borrowers from Partially-Owned Entities
for the most recent two (2) completed fiscal quarters multiplied by two (2),
with the product being divided by nine and one-half percent (9.5%).
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"LEASEHOLD INTEREST" means a leasehold estate in any land and/or any
buildings, structures, improvements and fixtures and all equipment located
thereon or used in connection therewith created pursuant to a Financeable Ground
Lease.
"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 2.17(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' Representative and are
not materially adverse (in the judgment of the Issuing Bank and Agent) to the
interests of the Lenders or the Borrowers; 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 Trust.
"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") means a Base Rate Loan, a Eurodollar
Loan, or a Competitive Bid Loan hereunder.
"LOAN ACCOUNT" is defined in Section 2.3(b).
"LOAN DOCUMENTS" means, collectively, this Agreement, the Note, the
Guaranties 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.
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"LOAN TO VALUE" means the ratio of (i) Recourse debt secured by a
Property divided by (ii) such Property's value. Value is determined by
multiplying the net operating income for the two (2) most recent fiscal quarters
for such Property as of the date such secured Recourse debt is incurred by two
(2) and dividing by 9.5%). Net operating income shall be adjusted in the manner
provided in Section 7.2 for any Properties acquired or disposed of during the
relevant period.
"MAC" means, with respect to the Borrowers and Guarantors as a whole or
any Unencumbered Eligible Property, any material adverse change in the business,
operations, assets, prospects or financial condition or other condition of such
Borrowers and Guarantors as a whole or such Unencumbered Eligible Property.
"MADSC AMOUNT" shall be calculated as follows: Unencumbered Eligible
Property NOI for the Unencumbered Eligible Properties for the most recent four
fiscal quarters / 1.6 = Maximum Assumed Debt Service. Maximum Assumed Debt
Service / 12 = Maximum Assumed Monthly Debt Service. Maximum Assumed Monthly
Debt Service / 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 Unencumbered Eligible
Property NOI with respect to any Unencumbered Eligible Property acquired by a
Borrower or Guarantor 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 or Guarantor. Unencumbered Eligible Property NOI for any
Unencumbered Eligible Property for which four (4) full quarters of operating
information is not available or, in the reasonable judgment of the Agent, 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 and Guarantors as a whole, (b) any Unencumbered
Eligible Property, (c) the ability of the Agent to enforce any of the Loan
Documents, or (d) the ability of the Borrowers and Guarantor as a whole to
perform their obligations under the Loan Documents.
"MAXIMUM AVAILABILITY" shall mean at any particular time, an amount
equal to the lesser of:
(1) 55% of the Capitalized Value of Unencumbered Eligible
Properties;
(2) the MADSC Amount;
(3) (a) 100% of the net present value of the next forty (40)
complete calendar quarters of projected Unencumbered Eligible
Property NOI from Approved Leases (excluding unexercised
option periods, any percentage or other type
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of contingent rent, or income from any period beyond which a
tenant has a termination right) for Unencumbered Eligible
Properties with Class I Credit Tenants, plus (b) 70% of the
net present value of the next forty (40) complete calendar
quarters of projected Unencumbered Eligible Property NOI from
existing Approved Leases (excluding unexercised option periods
and any percentage or other type of contingent rent, or income
from any period beyond which a tenant has a termination right)
for Unencumbered Eligible Properties with Class II Credit
Tenants, all as discounted at the 10-year Treasury Bond yield
plus two percent (2%), plus (c) 10% of the Capitalized Value
of the Unencumbered Eligible Properties;
(4) the aggregate Revolving Credit Commitments then in effect;
or
(5) the lesser of:
(a) the quotient of (i) 55% of the Capitalized Value
of Unencumbered Eligible Properties with Class I
Credit Tenants divided by (ii) 60%;
(b) the quotient of (i) the MADSC Amount for
Unencumbered Eligible Properties with Class I Credit
Tenants divided by (ii) 60%; or
(c) the quotient of (i) the sum of (x)100% of the net
present value of the next forty (40) complete calendar
quarters of projected Unencumbered Eligible Property
NOI from Approved Leases (excluding unexercised option
periods, any percentage or other type of contingent
rent, or income from any period beyond which a tenant
has a termination right) for Unencumbered Eligible
Properties with Class I Credit Tenants, plus (y) 70%
of the net present value of the next forty (40)
complete calendar quarters of projected Unencumbered
Eligible Property NOI from existing Approved Leases
(excluding unexercised option periods and any
percentage or other type of contingent rent, or income
from any period beyond which a tenant has a
termination right) for Unencumbered Eligible
Properties with Class II Credit Tenants, all as
discounted at the 10-year Treasury Bond yield plus two
percent (2%), plus (z) 10% of the Capitalized Value of
the Unencumbered Eligible Properties divided by (ii)
60%.
Notwithstanding the foregoing, Unencumbered Eligible Properties having
Approved Leases with Class I Credit Tenants must represent at least sixty
percent (60%) of the Maximum Availability.
"MAXIMUM REVOLVING CREDIT COMMITMENT" means $100,000,000. The Maximum
Revolving Credit Commitment shall automatically be reduced upon Agent's receipt
of any notice from the Borrowers' Representative requesting a voluntary
reduction pursuant to Section 2.1(e).
"MEASURING PERIOD" means (a) for purposes of calculating Capitalized
Value, the two (2) most recent fiscal quarters and (b) for purposes of
calculating the MADSC Amount, the four (4) most recent fiscal quarters.
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"MINIMUM ESTIMATED NET WORTH" means Capitalized 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 INVESTMENT RATING" means at least two of the following
investment grade debt ratings assigned to the senior unsecured long term
indebtedness of Lexington: (i) BBB- or higher by S&P, (ii) Baa3 or higher by
Moody's, or (iii) the equivalent or higher of either such rating by another
rating agency approved by the Requisite Lenders.
"MOODY'S" means Moody's Investors Services, Inc. and its successors.
"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 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 PRO RATA LOAN" is defined in Section 2.11(b)(v).
"NOTE" means in the case of the Revolving Credit Loans a promissory
note in the form attached hereto as Exhibit B or in the case of the Competitive
Bid Rate Loans a promissory note in the form attached hereto as Exhibit F
payable to a Lender, evidencing certain of the Obligations of each Borrower to
such Lender and executed by each of the Borrowers as required by Sections 2.2 or
2.6, 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' Representative to Agent pursuant to
Sections 2.5 or 3.1 with respect to a proposed Borrowing.
"NOTICE OF CONTINUATION/CONVERSION" means a notice substantially in the
form of Exhibit K hereto delivered by Borrowers' Representative to Agent
pursuant to Section 2.8 with respect to a continuation or conversion of one or
more Revolving Credit Loans.
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"OBLIGATIONS" mean all Outstanding Amounts, advances, debts,
liabilities, obligations, covenants and duties owing by any Borrower or
Guarantor 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 or Guarantor under this Agreement or any other Loan Document.
"OUTSTANDING AMOUNT" means, as of any date as of which the amount
thereof shall be determined, the aggregate outstanding principal amount of any
outstanding Loans and the Letter of Credit Obligations.
"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 2.19(b)(viii).
"PERMITTED EXCEPTION" means any exception set forth on the Title Policy
or updated title report of any Unencumbered Eligible Property.
"PARTIALLY-OWNED ENTITY(IES)" means any of the partnerships, joint
ventures and other entities owning real estate assets in which Lexington, LCIF
and/or LCIFII collectively, directly or indirectly through its full or partial
ownership of another entity, own less than 100% of the equity interests, whether
or not such entity is required in accordance with GAAP to be consolidated for
financial reporting purposes.
"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 real estate owned or ground leased by
a Borrower or Guarantor.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (i) such Lender's 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 Commitments then outstanding.
"REAL PROPERTY" has the meaning set forth in Section 6.11.
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"RECOURSE" means with reference to any obligation or liability, any
liability or obligation that is not Without Recourse to the obligor thereunder,
directly or indirectly. For purposes hereof, a Person shall not be deemed to be
"indirectly" liable for the liabilities or obligations of an obligor solely by
reason of the fact that such Person has an ownership interest in such obligor,
provided that such Person is not otherwise legally liable, directly or
indirectly, for such obligor's liabilities or obligations (e.g., by reason of a
guaranty or contribution obligation, by operation of law or by reason of such
Person's being a general partner of such obligor).
"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.
"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.
"REQUISITE LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are at least sixty-five (65%); provided, 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 sixty-five percent (65%) of the aggregate Pro Rata Shares of
such non-defaulting Lenders; provided, further, that, in the event that the
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 Revolving
Credit Loans or Letters of Credit Obligations are at least sixty-five percent
(65%); and provided, further that, in the event the Commitments have been
terminated by the Lenders and no Revolving Credit Loans or Letters of Credit
Obligations are
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outstanding, the Requisite Lenders shall be the Lenders holding sixty-five
percent (65%) of the outstanding principal amount of the Competitive Bid Loans
on such date.
"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 any Borrower or Guaranty
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 Guarantor or Lexington or options, warrants or other rights
to acquire any of Borrowers' or Guarantor's 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 or Guarantor to any
Affiliate or Subsidiary of such Borrower or Guarantor or (ii) in respect of the
redemption, purchase, retirement, defeasance, or other acquisition from an
Affiliate or Subsidiary of any Borrower or Guarantor of any Indebtedness of such
Borrower or Guarantor, and (d) every direct or indirect investment by any
Borrower or Guarantor (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 Guarantor 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 COMMITMENT" means, with respect to any Lender, the
obligation of such Lender to make Revolving Credit 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 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
$100,000,000.
"REVOLVING CREDIT EURODOLLAR RATE LOAN" means a Revolving Credit Loan
which is a Eurodollar Loan.
"REVOLVING CREDIT LOAN" means a Base Rate Loan or a Revolving Credit
Eurodollar Rate Loan.
"REVOLVING CREDIT TERMINATION DATE" means the earlier to occur of (i)
July 22, 2001 (subject to the extensions available under Section 2.1) (or, if
not a Business Day, the next
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<PAGE> 115
preceding Business Day) and (ii) the date as of which the outstanding principal
amount of the Loans shall become due and payable by acceleration after the
occurrence and during the continuance of an Event of Default.
"S&P" means Standard & Poors' Ratings Group, a division of McGraw-Hill,
Inc., and its successors.
"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 after giving effect to Section 2.3(e)(viii), 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
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<PAGE> 116
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 2.17(a).
"SUBSIDIARY" means, as to any Person, a partnership, corporation, trust
or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests 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 and
provided such corporation, partnership or other entity is consolidated with such
Person for financial reporting purposes under GAAP.
"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 Real 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 Real 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 Real 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 Real 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, Guarantor 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 Guarantor 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 Guarantor 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.
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<PAGE> 117
"TITLE POLICY" means, for any Property, an ALTA standard form title
policy (or, if such form is not available, an equivalent form of owner's title
insurance policy) dated within sixty (60) days delivery thereof to Agent (or if
older delivered together with a title report dated within sixty (60) days of
such delivery) issued by a nationally-recognized title insurance company,
insuring that the Borrower or Guarantor holds good and clear marketable Fee
Interest or Leasehold Interest to such Property, subject only to Customary
Permitted Liens (which in the case of a Leasehold Interest shall include the
terms and conditions of the Financeable Ground Lease).
"TOTAL DEBT" means total debt (including letter of credit obligations)
or guarantees in respect of money borrowed by the Borrowers or the Guarantors
(without duplication) on a consolidated basis.
"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.
"TOTAL UNSECURED DEBT" shall mean the aggregate unsecured Indebtedness
of Lexington 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 Agent,
of the Uniform Commercial Code filings which may have been filed in each
location where any Unencumbered Eligible Property is located or where any
Borrower or Guarantor does business or is domiciled.
"UNANIMOUS LENDER APPROVAL" means the written consent of each Lender
that is a party to this Agreement at the time of reference.
"UNENCUMBERED ELIGIBLE PROPERTY APPLICATION" shall mean a written
request from the Borrowers' Representative to the Agent to designate a Property
as an Unencumbered Eligible Property. Such request shall be accompanied by the
following:
(i) detailed statements of income and expenses for the prior
two years (if available);
(ii) pro forma operating statements for the existing lease
term;
(iii) copies of all leases and ground leases executed in
connection with the Property;
(iv) a description of each tenant's business and a copy of
each tenant's current financial statements;
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<PAGE> 118
(v) an Environmental Report disclosing no condition which
could reasonably be expected to have a Material Adverse Effect
on the operation or value of such Property, irrespective of
any third party indemnification obligations;
(vi) a physical and structural inspection report prepared by a
reputable engineer or consultant disclosing no condition which
could reasonably be expected to have a Material Adverse Effect
on the operation or value of such Property, irrespective of
any third party indemnification obligations;
(vii) a Survey; and
(ix) a copy of the owner's Title Policy which, if more than 60
days old, shall be accompanied by an updated title report.
"UNENCUMBERED ELIGIBLE PROPERTY" has the meaning set forth in Section
2.19.
"UNENCUMBERED ELIGIBLE PROPERTY NOI" means, for any period,
Unencumbered Eligible Property Income minus Unencumbered Eligible Property
Expenses. For such purposes:
(A) "Unencumbered Eligible Property Income" means, for the
applicable period the revenues received from the operation of the Unencumbered
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) "Unencumbered Eligible Property Expenses" means for the
applicable period all operating expenses incurred by any Borrower or Guarantor
in connection with or relating to the operation of such Unencumbered 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 Unencumbered 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).
For the purposes of calculating Unencumbered Eligible Property NOI with
respect to Properties acquired or sold, Unencumbered Eligible Property NOI will
be adjusted to include or exclude (as appropriate) that Property's contribution
on a historical or pro forma basis reasonably acceptable to Agent.
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary of which Lexington, LCIF
or LCIFII shall at any time own directly or indirectly through a Subsidiary or
Subsidiaries, 100% of the outstanding voting interests and one hundred percent
(100%) of the economic interests except for directors qualifying shares and the
like.
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<PAGE> 119
"WITHOUT RECOURSE" OR "WITHOUT RECOURSE" means with reference to any
obligation or liability, any obligation or liability for which the obligor
thereunder is not liable or obligated other than as to its interest in a
designated Property or other specifically identified asset only, subject to such
limited exceptions to the non-recourse nature of such obligation or liability,
such as fraud, misappropriation, misapplication and environmental indemnities,
as are usual and customary in like transactions involving institutional lenders
at the time of the incurrence of such obligation or liability.
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<PAGE> 120
EXHIBIT B
UNSECURED REVOLVING CREDIT NOTE
$______________________ Dated: July __, 1998
FOR VALUE RECEIVED, the undersigned, LEXINGTON CORPORATE PROPERTIES
TRUST; LEPERCQ CORPORATE INCOME FUND L.P.; LEPERCQ CORPORATE INCOME FUND II
L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.; LEX GP-1, INC.; PHOENIX HOTEL
ASSOCIATES LIMITED PARTNERSHIP; and SAVANNAH WATERFRONT HOTEL, LLC
(collectively, the "Borrowers" and individually a "Borrower") HEREBY PROMISE TO
PAY, jointly and severally, to the order of _____________ (the "Lender"), the
lesser of (a) ____________ DOLLARS ($________) or (b) the aggregate principal
amount then outstanding of the Loans made by the Lender to the Borrowers
pursuant to that certain Unsecured Revolving Credit Agreement dated as of July
__, 1998, 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 July ___, 2001, 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 at the times and at the rates provided in the
Credit Agreement.
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.
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. Subsequent waivers shall
be at the Agent's discretion. 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 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.
<PAGE> 121
This 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
reference is hereby made for a statement of the terms and conditions under which
this Note may be prepaid or the Obligations accelerated or extended. This Note
evidences Borrowings under and has been issued by the Borrowers in accordance
with the terms of the Credit Agreement. 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 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 NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWERS
AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND THE
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON EACH BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION OF THE CREDIT AGREEMENT. EACH BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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 and every endorser and guarantor of this Note of
the obligation represented 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
and asserts to any extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of any collateral and to
the addition or release of any other party primarily or secondarily liable.
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.
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<PAGE> 122
IN WITNESS WHEREOF, each of 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 TRUST
By:_____________________________
T. Wilson Eglin
Its: President
LEPERCQ CORPORATE INCOME FUND L.P.
By: LEX GP-1, Inc. its general partner
By:_________________________
T. Wilson Eglin
Its: Vice President
LEPERCQ CORPORATE INCOME FUND II L.P.
By: LEX GP-1, Inc., its general
By:______________________
T. Wilson Eglin
Its: Vice President
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
Its: Vice President
LEX GP-1, INC.
By:________________________
T. Wilson Eglin
Its: Vice President
LEX LP-1, INC.
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<PAGE> 123
By:________________________
T. Wilson Eglin
Its: Vice President
PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP
By: Lepercq Corporate Income Fund II, L.P.,
Its general partner
By: LEX GP-1, Inc., its general partner
By:________________________
T. Wilson Eglin
Its: Vice President
SAVANNAH WATERFRONT HOTEL, LLC.
By: Lepercq Corporate Income Fund, L.P.,
Its general partner
By: LEX GP-1, Inc.
By:__________________
T. Wilson Eglin
Its: Vice President
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<PAGE> 124
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 Unsecured Revolving Credit Agreement
dated as of July ___, 1998 (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 TRUST; LEPERCQ CORPORATE INCOME FUND L.P.;
LEPERCQ CORPORATE INCOME FUND II L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.;
LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP; and SAVANNAH
WATERFRONT HOTEL, LLC, 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
2.5(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 Funding 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, three or six months].
Borrowers' Representative 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):
<PAGE> 125
Please pay the proceeds of such Loans into the account whose details are
given below:
_______________
_______________
_______________
Executed as of this _____ day of ________, 199___ .
LEXINGTON CORPORATE PROPERTIES TRUST
as Borrowers' Representative
By:_______________________________________
Its:___________________________________
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<PAGE> 126
EXHIBIT D
FORM OF CERTIFICATE OF UNENCUMBERED ELIGIBLE PROPERTIES;
MAXIMUM AVAILABILITY AND CURRENT 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 Unsecured Revolving Credit Agreement
dated as of July ___, 1998 (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 TRUST; LEPERCQ CORPORATE INCOME FUND L.P.;
LEPERCQ CORPORATE INCOME FUND II L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.;
LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP; and SAVANNAH
WATERFRONT HOTEL, LLC, 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 2.5 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. Unencumbered Eligible Properties:
Unencumbered Eligible Properties are as follows:
<TABLE>
<CAPTION>
Address Total Unencumbered Eligible
Property NOI for the two (2) most
fiscal quarters ending [date]
<S> <C>
1.
2.
3.
4.
5.
6.
</TABLE>
<PAGE> 127
<TABLE>
<CAPTION>
<S> <C>
Total $______________
</TABLE>
<TABLE>
<CAPTION>
II. Maximum Availability:
<S> <C> <C>
(a) Revolving Credit Commitments in effect $______________
on the date hereof:
(b) 55% of the Capitalized Value of Unencumbered Eligible Properties: $______________
(c) MADSC Amount* $______________
* See Calculation on Schedule I to Exhibit D
(d) NPV of Unencumbered Eligible Property NOI (from Schedule
II-(d)(iii)) Plus 10% of Capitalized Value.
(i) Class I Credit Tenants x 100% (from Schedule II-(d)(i)) $______________
(ii) Class II Credit Tenants x 70% (from Schedule II-(d)(ii)) $______________
(iii) 10% of Capitalized Value of Unencumbered $______________
Eligible Properties (from Schedule II-(d)(iii))
(iv) Sum of (i), (ii) and (iii) $______________
(e) Lesser of (a), (b), (c) or (d): $______________
(f) The quotient of (d)(i) above divided by 60% $______________
(Class I Tenants as a Percentage of Unencumbered
Eligible Properties must be at least 60% of (e) above)
(g) The lesser of (e) or (f) above $______________
III. Current Availability:
(a) Maximum Availability (from II (g) above) $______________
(b) Total Unsecured Debt $______________
(c) Current Availability ((a) minus (b)): $______________
(d) Total Advance Requested (must be less than (c)) $______________
(e) Ending Availability ((c) minus (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
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<PAGE> 128
determine the facts set forth herein and upon which Agent, each of the Lenders
and the undersigned entity are justified in relying.
WITNESS the due execution of this Certificate by the undersigned's duly
authorized representative on , 199 .
LEXINGTON CORPORATE PROPERTIES TRUST,
as Borrowers' Representative
By:______________________________________
Its:__________________________________
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<PAGE> 129
SCHEDULE I TO CERTIFICATE OF UNENCUMBERED ELIGIBLE PROPERTIES;
MAXIMUM AVAILABILITY AND CURRENT AVAILABILITY
<TABLE>
<CAPTION>
<S> <C> <C>
1. Total Unencumbered Eligible Property NOI
(from Schedule II-(d)(iv) 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) MADSC AMOUNT: Maximum Assumed Monthly
Debt Service divided by Monthly Debt Service Constant $________
</TABLE>
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<PAGE> 130
SCHEDULE II-(d)(i) TO CERTIFICATE OF UNENCUMBERED ELIGIBLE PROPERTY;
MAXIMUM AVAILABILITY AND CURRENT AVAILABILITY
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
10-yr. Discount Property 1 Property 2 Property 3 Property 4 Property 5 Property 6 Property 7 Grand
Treasury Rate Total
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 131
SCHEDULE II-(d)(ii) TO CERTIFICATE OF UNENCUMBERED ELIGIBLE PROPERTY;
MAXIMUM AVAILABILITY AND CURRENT AVAILABILITY
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
10-yr. Discount Rate Property 1 Property 2 Grand Total Adjustment Adjusted
Treasury Factor Total
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
70%
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 132
SCHEDULE II-(d)(iii) TO CERTIFICATE OF UNENCUMBERED ELIGIBLE PROPERTY;
MAXIMUM AVAILABILITY AND CURRENT AVAILABILITY
<TABLE>
<CAPTION>
Fiscal Fiscal
Quarter Quarter
Unencumbered Eligible Property ending ending
(Date) (Date) Total
<S> <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 $_________ $_________ $_________
Unencumbered Eligible Property NOI
(Total Revenue minus Total Expense) $ $ $ x 2 = $__________ (a)
========= ========= =========
(a) divided by 9.5% = $________
Capitalized Value $_________
</TABLE>
<PAGE> 133
SCHEDULE II-(d)(iv) TO CERTIFICATE OF UNENCUMBERED ELIGIBLE PROPERTY;
MAXIMUM AVAILABILITY AND CURRENT AVAILABILITY
<PAGE> 134
EXHIBIT E
FORM OF CERTIFICATE OF TOTAL DEBT TO CAPITALIZED VALUE
Fleet National Bank, as Agent
111 Westminster Street, Suite 800
Providence, Rhode Island 02903
Attention: Commercial Real Estate Group
Ladies and Gentlemen:
Reference is made to that certain Unsecured Revolving Credit Agreement
dated as of July 22, 1998 (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 TRUST; LEPERCQ CORPORATE INCOME FUND L.P.;
LEPERCQ CORPORATE INCOME FUND II L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.;
LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP; and SAVANNAH
WATERFRONT HOTEL, LLC, 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 2.5 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__:
(a) Total Debt $___________
(b) Capitalized Value (from Schedule I) $___________
Total Debt to Capitalized Value (from Schedule I)
((a) divided by (b) converted to a percentage) _________
Must not exceed 55%
In preparing this Certificate and the attached Schedule, 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.
WITNESS the due execution of this Certificate by the undersigned's duly
authorized representative on ____________, 199__.
LEXINGTON CORPORATE PROPERTIES TRUST,
as Borrowers' Representative
By:__________________________________
Its:________________________________
<PAGE> 135
SCHEDULE I: WORKSHEET TO CERTIFICATE OF TOTAL DEBT TO CAPITALIZED
VALUE DATED [ ]
<TABLE>
<CAPTION>
Calculations:
Previous
Fiscal Fiscal Fiscal
Quarter Quarter Quarters
<S> <C> <C> <C>
1. EBIDA
(a) Consolidated net income from operations..... $ $ $
(b) Plus depreciation and amortization.......... $ $ $
(c) Plus interest expense....................... $ $ $
(d) Adjustment for gains (losses) from asset
sales and extraordinary items............... $ $ $
(e) Adjustment for minority interest of any
Borrower or Guarantor to the extent deducted
from (a) above.............................. $ $ $
-------- -------- --------
EBIDA (sum of (a) through (e)).................. $ $ $
less non-incremental revenue generating capital
expenditures ("Cap Exp")........................ $ $ $
-------- -------- --------
EBIDA less Cap Exp.............................. $ $ $
2. Adjusted EBIDA for Capitalized Value Calculation
(f) EBIDA....................................... $ $ $
(g) Pro forma/Historical adjustment for asset
sales..................................... $ $ $
(h) Pro forma/Historical adjustment for
acquisitions.............................. $ $ $
Adjusted EBIDA for Capitalized Value (sum of (f)
through (h)).................................... $ $ $
3. Capitalized Value
(a) Adjusted EBIDA for the two previous fiscal
quarters.................................... $
(b) Capitalization rate. (9.5%).................
Capitalized Value (((a) multiplied by (2))
divided by (b))................................. $
</TABLE>
<PAGE> 136
EXHIBIT F
FORM OF COMPETITIVE BID NOTE
$________________ _____________, 19__
FOR VALUE RECEIVED, the undersigned LEXINGTON CORPORATE PROPERTIES
TRUST; LEPERCQ CORPORATE INCOME FUND L.P.; LEPERCQ CORPORATE INCOME FUND II
L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.; LEX GP-1, INC.; PHOENIX HOTEL
ASSOCIATES LIMITED PARTNERSHIP; and SAVANNAH WATERFRONT HOTEL, LLC
(collectively, the "Borrowers" and individually a "Borrower"), promise to pay to
the order of ___________________ (the "Lender") at the Agent's office in
accordance with the provisions of the Credit Agreement.
(a) on [insert applicable maturity, which is last day of Interest
Period] (the "Bid Maturity Date") the principal amount of ________________
DOLLARS ($___________ or, if less, the aggregate unpaid principal amount of
Competitive Bid Loans advanced by the Lender to the Borrowers pursuant to the
Unsecured Revolving Credit Agreement dated as of July _____, 1998 (as amended
and in effect from time to time, the "Credit Agreement"), among the Borrowers,
the Lender, Fleet National Bank, as Administrative Agent, and other parties
thereto; and
(b) interest on the principal balance hereof from time to time
outstanding from the Closing Date under the Credit Agreement through and
including the Bid Maturity Date hereof at the times provided in the Credit
Agreement and at the rate of _______%.
This Note evidences Competitive Bid Loans under and has been issued by
the Borrowers in accordance with the terms of the Credit Agreement. The Lender
and any holder hereof pursuant to the Credit Agreement or by operation of law is
entitled to the benefits of the Credit Agreement and the other Loan Documents,
and may enforce the agreements of the Borrower contained therein, and any holder
hereof may exercise the respective remedies provided for thereby or otherwise
available in respect thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Note and not otherwise defined
herein shall have the same meanings herein as in the Credit Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of the Funding Date of any Competitive Bid Loan or at
the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Competitive Bid Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Competitive Bid Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record,
-2-
<PAGE> 137
including computer records, maintained by the Lender with respect to any
Competitive Bid Loans shall be prima facie evidence of the principal amount
thereof owing and unpaid to the Lender, but the failure to record, or any error
in so recording, any such amount on any such grid, continuation or other record
shall not limit or otherwise affect the obligation of the Borrowers hereunder or
under the Credit Agreement to make payments of principal of and interest on this
Note when due in accordance with the provisions hereof.
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented 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 and
asserts to any extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of any collateral and to
the addition or release of any other party primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE
BORROWERS AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND THE
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE ADDRESS
SPECIFIED IN THE CREDIT AGREEMENT. EACH BORROWER HEREBY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
This Note shall be governed by the laws of the State of New York.
-3-
<PAGE> 138
IN WITNESS WHEREOF, each of 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 TRUST
By:_____________________________
T. Wilson Eglin
Its: President
LEPERCQ CORPORATE INCOME FUND L.P.
By: LEX GP-1, Inc. its general partner
By:_________________________
T. Wilson Eglin
Its: Vice President
LEPERCQ CORPORATE INCOME FUND II L.P.
By: LEX GP-1, Inc., its general
By:______________________
T. Wilson Eglin
Its: Vice President
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
Its: Vice President
LEX GP-1, INC.
By:________________________
T. Wilson Eglin
Its: Vice President
LEX LP-1, INC.
By:________________________
-4-
<PAGE> 139
T. Wilson Eglin
Its: Vice President
PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP
By: Lepercq Corporate Income Fund II, L.P.,
Its general partner
By: LEX GP-1, Inc., its general partner
By:________________________
T. Wilson Eglin
Its: Vice President
SAVANNAH WATERFRONT HOTEL, LLC.
By: Lepercq Corporate Income Fund, L.P.,
Its general partner
By: LEX GP-1, Inc.
By:__________________
T. Wilson Eglin
Its: Vice President
-5-
<PAGE> 140
<TABLE>
<CAPTION>
Amount of Principal Paid Balance of Notation
Date Amount of Loan or Prepaid Principal Unpaid Made by
- ---- -------------- ---------- ---------------- -------
<S> <C> <C> <C> <C>
</TABLE>
-6-
<PAGE> 141
EXHIBIT G
FORM OF COMPETITIVE BID QUOTE REQUEST
Fleet National Bank
111 Westminster Street
Suite 800
Providence, RI 02903
Attention: Commercial Real Estate Group
Re: Competitive Bid Quote Request
This Competitive Bid Quote Request is given in accordance with Section
2.6(c) of the Unsecured Revolving Credit Agreement (as amended or modified from
time to time, the "Credit Agreement") dated as of July _____, 1998 by and among
(a) LEXINGTON CORPORATE PROPERTIES TRUST; LEPERCQ CORPORATE INCOME FUND L.P.,
LEPERCQ CORPORATE INCOME FUND II L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.;
LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP; AND SAVANNAH
WATERFRONT HOTEL, LLC. (b) FLEET NATIONAL BANK AND THE OTHER LENDERS
(COLLECTIVELY, THE "LENDERS") and (c) FLEET NATIONAL BANK AS AGENT FOR THE
LENDERS (the "Agent"). Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
The Borrower hereby requests that the Agent obtain quotes for a [Eurodollar]
[Absolute] Competitive Bid Loan based upon the following:
1. The requested Funding Date of the Competitive Bid Loan shall be
______, 19 (1)
2. The aggregate amount of the Competitive Bid Loans shall be
___________(2)
3. The duration of the Interest Period applicable hereto shall be
__________ (3)
Very truly yours,
LEXINGTON CORPORATE PROPERTIES TRUST
as Borrowers' Representative
By:__________________________
Its:__________________________
(1) The date must be a Business Day.
(2) This amount shall be $5,000,000 or larger multiple of $1,000,000.
(3) The stated Interest Period is subject to the provisions of the definition of
Interest Period.
<PAGE> 142
EXHIBIT H
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
Fleet National Bank
111 Westminster Street
Suite 800
Providence, RI 02903
Attention: Commercial Real Estate Group
Re: Invitation for Competitive Bid Quotes
This Competitive Bid Quote Request is given in accordance with Section
2.6(c) of the Unsecured Revolving Credit Agreement (as amended or modified from
time to time, the "Credit Agreement") dated as of July _____, 1998 by and among
(a) LEXINGTON CORPORATE PROPERTIES TRUST; LEPERCQ CORPORATE INCOME FUND L.P.,
LEPERCQ CORPORATE INCOME FUND II L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.;
LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP; AND SAVANNAH
WATERFRONT HOTEL, LLC. (collectively the "Borrowers" and individually a
"Borrower") (b) FLEET NATIONAL BANK AND THE OTHER LENDERS (collectively, the
"Lenders") and (c) FLEET NATIONAL BANK as agent for the Lenders (the "Agent").
Capitalized terms which are used herein without definition and which are defined
in the Credit Agreement shall have the same meanings herein as in the Credit
Agreement.
Pursuant to Section 2.6(c) of the Credit Agreement, you are invited to
submit a competitive bid quote to the Borrowers' Representative for the
following proposed Competitive Bid Loan(s):
Requested Borrowing Date Principal Amount Interest Period
Such Competitive Bid Quotes should specify a Competitive Bid Margin in
the case of a requested Eurodollar Competitive Bid Loan, or a Competitive Bid
Rate in the case of a requested Absolute Competitive Bid Loan.
All Competitive Bid Quotes must be submitted to the Agent by telex or
facsimile transmission at its offices as specified in the Credit Agreement not
later than (a) 2:00 p.m. (New York City time) on the fourth Eurodollar Business
Day prior to the proposed Funding Date, in the case of a Eurodollar Competitive
Bid Loan, or (b) 10:00 a.m. (New York City time) on the day prior to the
proposed Funding Date in the case of an Absolute Competitive
<PAGE> 143
Bid Loan(4). Quotes received after these deadlines will not be forwarded to the
Borrowers' Representative.
Submitted bids must be for $2,000,000 or a larger multiple of
$1,000,000 and may not exceed the aggregate principal amount of Competitive Bid
Loans for which offers were requested. All Competitive Bid Quotes should be
submitted in substantially the form of Exhibit I to the Credit Agreement. Please
follow-up your submitted written bids with telephone verification to confirm
receipt.
Very truly yours,
FLEET NATIONAL BANK,
as Administrative Agent
By:_______________________
Name:
Title:
(4) The Agent may submit Competitive Bid Quotes in its capacity as a Lender only
if submitted to the Borrowers' Representative not later than (a) one hour prior
to the deadline for the other Lenders, in the case of a Eurodollar Competitive
Bid Loan or (b) 15 minutes prior to the deadline for the other Lenders, in the
case of an Absolute Competitive Bid Loan.
-2-
<PAGE> 144
EXHIBIT I
FORM OF COMPETITIVE BID QUOTE
Fleet National Bank
111 Westminster Street
Suite 800
Providence, RI 02903
Attention: Commercial Real Estate Group
Re: Competitive Bid Quote to Lexington Corporate Properties Trust
This Competitive Bid Quote Request is given in accordance with Section
2.6(c) of the Unsecured Revolving Credit Agreement (as amended or modified from
time to time, the "Credit Agreement") dated as of July _____, 1998 by and among
(a) LEXINGTON CORPORATE PROPERTIES TRUST; LEPERCQ CORPORATE INCOME FUND L.P.,
LEPERCQ CORPORATE INCOME FUND II L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.;
LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP; AND SAVANNAH
WATERFRONT HOTEL, LLC. (collectively the "Borrowers" and individually a
"Borrower")(b) FLEET NATIONAL BANK AND THE OTHER LENDERS (collectively, the
"Lenders") and (c) FLEET NATIONAL BANK AS AGENT FOR THE LENDERS (the "Agent").
Capitalized terms which are used herein without definition and which are defined
in the Credit Agreement shall have the same meanings herein as in the Credit
Agreement.
In response to the Competitive Bid Quote Request of the Borrowers'
Representative dated _________, 19__, we hereby make the following Competitive
Bid Quote on the following terms:
1. Quoting Lender: ___________________
2. Person to contact at Quoting Lender: ______________________
3. Funding Date (5) ____________________
4. We hereby offer to make Competitive Bid Loan(s) in the following maximum
principal amounts for the following Interest Period(s) and at the following
rates:
<TABLE>
<CAPTION>
Maximum Principal Amount (6) Interest Period (7) Competitive Bid Margin (8) Competitive Rate (9)
<S> <C> <C> <C>
</TABLE>
<PAGE> 145
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Competitive Bid Loan(s) for which any
offer(s) [is] [are] accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
By:______________________
Name:
Title:
Dated:_________________
(5) As specified in the related Competitive Bid Quote Request.
(6) The principal amount bid for each Interest Period may not exceed the
principal amount requested. Competitive Bid Quotes must be made for at least
$2,000,000 or a larger multiple of $1,000,000, and in accord with the other
provisions of Section 2.6(e)(ii) of the Credit Agreement.
(7) As specified in the related Competitive Bid Quote Request.
(8) To be specified in the case of a Eurodollar Competitive Bid Loan, in accord
with the provisions of Section 2.6(e)(ii)(d) of the Credit Agreement.
(9) To be specified in the case of an Absolute Competitive Bid Loan, in accord
with the provisions of Section 2.6(e)(ii)(e) of the Credit Agreement.
-2-
<PAGE> 146
EXHIBIT J
FORM OF NOTICE OF ACCEPTANCE OR
NON-ACCEPTANCE OF COMPETITIVE BID QUOTE(S)
Fleet National Bank
111 Westminster Street
Suite 800
Providence, RI 02903
Attention: Commercial Real Estate Group
Re: Acceptance of Competitive Bid Quotes
Date of Competitive Bid Loan Quote: ____________________
Type of Competitive Bid Loan Requested: ____________________
[Eurodollar] [Absolute]
Requested Funding Date: ____________________
Under Section 2.6(g) of the Unsecured Revolving Credit
Agreement (the "Credit Agreement") dated as of July ____, 1998, Lexington
Corporate Properties Trust hereby accepts the following Competitive Bid
Quote(s):
<TABLE>
<CAPTION>
Principal Competitive Bid Rate/
Amount of Quote Interest Period(s) Competitive Bid Margin Lender
--------------- ------------------ ---------------------- ------
<S> <C> <C> <C>
</TABLE>
Lexington Corporate Properties Trust hereby rejects the following Competitive
Bid Quote(s):
<TABLE>
<CAPTION>
Principal Competitive Bid Rate/
Amount of Quote Interest Period(s) Competitive Bid Margin Lender
--------------- ------------------ ---------------------- ------
<S> <C> <C> <C>
</TABLE>
-3-
<PAGE> 147
The accepted and rejected Competitive Bid Quotes described above
constitute all Competitive Bid Quotes submitted by the Lenders in accordance
with Section 2.6(g) of the Credit Agreement.
Very truly yours,
LEXINGTON CORPORATE PROPERTIES TRUST
as Borrowers' Representative
By:___________________________
Its:__________________________
-4-
<PAGE> 148
EXHIBIT K
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 Unsecured Revolving Credit Agreement
dated as of July ___, 1998 (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 TRUST; LEPERCQ CORPORATE INCOME FUND L.P.;
LEPERCQ CORPORATE INCOME FUND II L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.;
LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP; and SAVANNAH
WATERFRONT HOTEL, LLC, 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 pursuant to Section 2.8(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' Representative 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.
<PAGE> 149
Executed as of this day of , 199 .
LEXINGTON CORPORATE PROPERTIES TRUST
as Borrowers' Representative
By:______________________________________
Its:_____________________________________
-2-
<PAGE> 150
EXHIBIT L
ENVIRONMENTAL REPORTS
Lexington Corporate Properties Trust
Environmental Summary
<TABLE>
<CAPTION>
REPORT
TENANT PROPERTY ADDRESS DATE
- ------ ---------------- ------
<S> <C> <C>
Honeywell, Inc. 19019 N. 59th Nov-94
Glendale, AZ 85301
Wal-Mart Stores, Inc. Highway 21 South Apr-96
Jacksonville, AL
Wal-Mart Stores East, Inc. 7055 Highway 85 South Oct-95
Riverdale, GA
Johnson Controls, Inc. 46600 Port Street Jul-91
Plymouth, MI 48170 Sep-95
Johnson Control, Inc. 15911 Progress Drive Feb-95
Cottondale, AL 35453 Oct-95
Jan-96
Stevens-Arnold, Inc. 1301 California Circle Dec-97
(BICC Public Limited Co.) Milipitas, CA 95035
Allied Holdings, Inc. 160 Clairemont Road Feb-98
Decatur, GA 30329
Jones Apparel Group, Inc. 250 Rittenhouse Circle Jan-98
Bristol, PA 19007
Fleet Mortgage Group, Inc. 2210 Enterprise Drive Jun-98
Florence, SC
</TABLE>
<PAGE> 151
EXHIBIT M
TENANT ROLL
<TABLE>
<CAPTION>
Name of Tenant Location
-------------- --------
<S> <C> <C>
1. Honeywell, Inc. 19019 N. 59th Avenue
Glendale, AZ
2. Wal-Mart Stores East, Inc. 7055 Highway 85 South
Riverdale, GA
3. Wal-Mart Stores, Inc. Highway 21 South
Jacksonville, AL
4. Johnson Controls, Inc. 46600 Port Street
Plymouth, MI
5. Johnson Controls, Inc. 15911 Progress Drive
Cottondale, AL
6. Stevens-Arnold, Inc. 1301 California Circle
Milipitas, CA
7. Allied Holdings, Inc. 160 Claremont Road
Decatur, GA
8. Jones Apparel Group, Inc. 250 Rittenhouse Circle
Bristol, PA
9. Fleet Mortgage Group, Inc. 2210 Enterprise Drive
Florence, SC
</TABLE>
<PAGE> 152
EXHIBIT N
ORGANIZATIONAL STRUCTURE AND RELATED MATTERS
LEXINGTON CORPORATE PROPERTIES TRUST
(Formerly: Lexington Corporate Properties, Inc.)
ORGANIZED: Maryland (CT) December 23, 1997
Lexington Corporate Properties, Inc. was originally formed as a
Delaware corp. on 10/14/92; Lexington Corporate
Properties--Maryland, Inc. was formed in Maryland on 4/19/94;
the DE. corp. Merged into MD corp. 6/27/94 as Lexington Corporate
Properties, Inc.;
Lexington Corporate Properties, Inc. merged into Lexington
Corporate Properties Trust on 12/31/97.
QUALIFIED: Alabama (CT) (Inc.) May 22, 1996
Georgia (CT) (Inc.) November 28, 1995
Michigan (CT) November 4, 1998
New York May 11, 1998
North Carolina (CT) (Inc.) December 20, 1996
Ohio (CT) (Inc.) December 23, 1996 WITHDRAWAL PENDING
Tennessee (CT) (Inc.) December 18, 1997
Virginia (CT) (Inc.) December 22, 1997
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
2,000,000 Class A Senior Cum. Convertible
Preferred
OUTSTANDING: COMMON: Check with Tom Watt at Chemical Mellon 946-7189
PREF.CL.A: 2,000,000 to Five Arrows Realty (Rothschild)
TRUSTEES: E. Robert Roskind Seth M. Zachary
Richard J. Rouse Carl D. Glickman
T. Wilson Eglin Kevin W. Lynch
John D. McGurk
CONTINUED ON PAGE 2>
<PAGE> 153
LEXINGTON CORPORATE PROPERTIES TRUST PAGE 2
OFFICERS: Chairman & Co-CEO: E. Robert Roskind
Vice Chairman & Co-CEO: Richard J. Rouse
President & COO: T. Wilson Eglin
Vice President & CAO: Paul R. Wood
CFO: Patrick Carroll (elected 5/20/98)
Senior Vice President: Stephen C. Hagen (elected 3/25/97)
Vice President: Janet M. Kaz
Philip L. Kianka (elected 2/11/98)
Secretary: Paul R. Wood
Treasurer: Patrick Carroll (elected)
TAX ID#: 13-3717318
DESCRIPTION: A REIT formed to convert LCIF and LCIF II Units to Stock.
PROPERTY: Jacksonville, AL: Wal-Mart Store (purchased 5/31/96)
Cottondale, AL: Johnson Controls (purchased 2/19/97)
Bessemer, AL: Allegiance/Baxter (CRIT merger 12/31/97)
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)
Gordonsville, TN: Dana (CRIT merger 12/31/97)
Richmond, VA: Circuit City (CRIT merger 12/31/97)
<PAGE> 154
LXP CANTON, INC.
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
Patrick Carroll (elected 1/1/99)
Paul R. Wood
Secretary: Patrick Carroll (elected 1/1/99)
Treasurer: T. Wilson Eglin
Assistant Secretary: Paul R. Wood
TAX ID#: 13-3873869
DESCRIPTION: Acquired Canton, OH property from Lexington and holds loan from
Merrill Lynch Credit Corporation.
PROPERTY: Canton, OH: Scandinavian Health Spa
<PAGE> 155
LEXINGTON PHOENIX CORP.
ORGANIZED: Arizona (CT) May 23, 1997
QUALIFIED:
STOCK: Authorized: 1,000 Common, $0.01 Par Value
Issued & Out: 1,000 Shares @ $10. Agg. to Lexington (100%)
DIRECTORS: Richard J. Rouse
T. Wilson Eglin
E. Robert Roskind (elected 1/1/99)
OFFICERS: Chairman: Richard J. Rouse
President: T. Wilson Eglin
Vice President: Dianne R. Smith
Secretary: Patrick Carroll (elected 1/1/99)
Treasurer: T. Wilson Eglin
TAX ID#: 13-3963035
DESCRIPTION: Owner of Bull Computers
PROPERTY: Phoenix, AZ: Bull Computers (purch. 7/9/97)
<PAGE> 156
LXP I, L.P.
FORMED: April 12, 1995 Delaware (CT)
QUALIFIED: California (CT) April 26, 1995
Connecticut (CT) May 5, 1998
Illinois (CT) April 26, 1995
Iowa (CT) May 6, 1998
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 26, 1995
GENERAL PARTNER:LXP I, Inc. (1%)
LIMITED PARTNER:Lepercq Corporate Income Fund L.P. (99%)
TAX ID#: 13-3828793
TERM: 4/1/2035
PROPERTY: Modesto, CA: Continental Can/Crown Cork & Seal (purch. 9/26/86)
Southington, CT: Hartford Fire Ins. (purch. 10/2/86)--
transferred from LCIF, 6/3/98; substitute for Ross sale
Countryside, IL: Bally Total Fitness (purch. 7/13/87)
Waterloo, IA: Ryder (purch 1/31/97)--transferred from LCIF,
6/3/98; substitute for Ross sale
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)
Oberlin, OH: Johnson Controls (purch. 12/23/96)--transferred
from Lexington, 6/3/98; substitute for Ross sale
Newport, OR: Fred Meyer store owned by F.M. Associates (purch.
9/9/87)
Mechanicsburg, PA: NFC Public Limited/Exel Log. (purch. 10/5/90)
Memphis, TN: Federal Express (purch. 2/24/88)
NOTE: 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.
<PAGE> 157
LXP I, INC.
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
Patrick Carroll (elected 1/1/99)
Secretary: Patrick Carroll (elected 1/1/99)
Treasurer: T. Wilson Eglin
TAX ID#: 13-3828792
DESCRIPTION: Sole general partner of LXP I, L.P., which acquired 11 properties
from LCIF L.P. on May 19, 1995.
<PAGE> 158
LEX GP-1, INC.
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
South Carolina (CT) April 30, 1998
Tennessee (CT) February 4, 1994 WITHDRAWAL 9/95
Utah (CT) March 14, 1997
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
Patrick Carroll (elected 1/1/99)
Stephen C. Hagen (elected 12/1/97)
Natasha Roberts (elected 1/1/99)
Secretary: Richard J. Rouse
Treasurer: T. Wilson Eglin
Assistant Secretary: Antonia G. Trigiani
Stephen C. Hagen (elected 12/1/97)
Patrick Carroll (elected 1/1/99)
TAX ID#: 13-3797734
DESCRIPTION: New General Partner of LCIF L.P. and LCIF II L.P.
PROPERTY: Owned by LCIF L.P. and LCIF II L.P.
NOTE: LEX GP-2, INC. MERGED INTO THIS CORP. ON 12/29/95.
<PAGE> 159
LEX LP-1, INC.
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
Patrick Carroll (elected 1/1/99)
Secretary: Richard J. Rouse
Treasurer: T. Wilson Eglin
Assistant Secretary: Patrick Carroll (elected 1/1/99)
TAX ID#: 13-3797736
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.
<PAGE> 160
LXP I, INC.
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
Patrick Carroll (elected 1/1/99)
Secretary: Patrick Carroll (elected 1/1/99)
Treasurer: T. Wilson Eglin
TAX ID#: 13-3828792
DESCRIPTION: Sole general partner of LXP I, L.P., which acquired 11
properties from LCIF L.P. on May 19, 1995.
<PAGE> 161
LXP II, L.P.
FORMED: April 12, 1995 Delaware (CT)
QUALIFIED: California (CT) April 26, 1995
Nevada (CT) April 26, 1995
New York May 10, 1995
Oregon (CT) April 26, 1995
GENERAL PARTNER: LXP II, Inc. (1%)
LIMITED PARTNER: Lepercq Corporate Income Fund II L.P. (99%)
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: 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.
<PAGE> 162
LXP II, INC.
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
Patrick Carroll (elected 1/1/99)
Secretary: Patrick Carroll (elected 1/1/99)
Treasurer: T. Wilson Eglin
TAX ID#: 13-3828796
DESCRIPTION: Sole general partner of LXP II, L.P., which acquired 4 properties
from LCIF II L P. on May 19, 1995.
<PAGE> 163
LEPERCQ CORPORATE INCOME FUND L.P.
FORMED: March 14, 1986 Delaware (CT)
QUALIFIED: Arizona (CT) December 5, 1986
California (CT) April 28, 1997
Connecticut (S of S) October 6, 1986 WITHDRAWAL PENDING
Florida (CT) May 4, 1998
Georgia (CT) April 28, 1998
Hawaii (CT) February 3, 1997
Illinois (CT) July 1, 1987 WITHDRAWAL 11/15/95
Iowa (CT) April 6, 1998 WITHDRAWAL PENDING
Massachusetts (CT) February 6, 1990
Michigan (CT) September 8, 1987
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
South Carolina (CT) April 30, 1998
Tennessee (CT) December 18, 1989 WITHDRAWAL 6/26/97
Texas (CT) January 9, 1997
Utah (CT) March 14, 1997
Washington (CT) January 13, 1997
GENERAL PARTNER: Lex GP-1, Inc. (.5701%)
LIMITED PARTNERS: Lex LP-1, Inc. (57.562%)
SPECIAL L PS: Roskind (.3930%); Rouse (.1510%); Whiting (.0846%);
Altabef (.0616%); Peterson (.0245%); A. Monk (.0382%);
E. Monk (.0382); The LCP Group (.2637%)--Total 1.0548%.
PROPERTY L PS: Barnes Rockshire Associates Limited Partnership
Barngiant Livingston Associates Limited Partnership
Barnhale Modesto Properties
Barnhech Montgomery Associates Limited Partnership
Barnvyn Bakersfield Associates L.P.
Barnward Brownsville Properties
RED BUTTE L PS: Red Butte Creek Associates Limited Partnership
EXPANSION L PS: Toy Properties Associates II
Toy Properties Associates V
Fort Street Partners Limited Partnership
CONTINUED ON PAGE 2
<PAGE> 164
LEPERCQ CORPORATE INCOME FUND L.P. PAGE 2
PACIFIC PLACE L PS: Pacific Place Partners Ltd. (non-affiliate P/S--Steve
Lawrence)
PHOENIX L P: Phoenix Hotel Associates Limited Partnership
SAVANNAH L P: Savannah Waterfront Hotel L.L.C.
ANCHORAGE L P: RBH Ventures
TRADEMARK LANCASTER L P: Trademark Lancaster, L.P.
COLUMBIA L P: Columbia Property Associates Limited Partnership
Tax ID#: 13-3779859 (old: 13-3356627)
Term: 12/31/2093
PROPERTY: Glendale, AZ: Honeywell (OWNED BY UNION HILLS
ASSOCIATES--acq. 11/24/86)
Lancaster, CA: Michael's (OWNED BY LEXINGTON LANCASTER
L.L.C.--acq. 6/19/98)
Milpitas, CA: BICC (acq. 12/31/97)
Rancho Bernardo, CA: Cymer, Inc. (acq. 5/2/97)
Palm Beach Gardens, FL: PGA/Wackenhut (acq. 5/18/98)
Decatur, GA: Allied Holdings (acq. 12/31/97)
Honolulu, HI: Liberty House (transfer Fort Street
12/31/96)
Hebron, KY: Fidelity (OWNED BY SAVANNAH: acq. in a
tax-free exchange 3/27/98)
Marlborough, MA: Honeywell/Lockheed (acq. 7/22/97)
Auburn Hills, MI: General Motors (acq. 7/1/98)
Livonia, MI: 2 Kelsey: Hayes-Headquarters & R&D bldg.
(Kirco merger acq. 3/27/98)
Tulsa, OK: Toys `R' Us (transfer Toys II 12/31/96-Owned
by Lexington Toy II Trust)
Clackamas, OR: Toys `R' Us (transfer Toys II 12/31/96-
Owned by Lexgtn Toy II Trust)
PA: 3 Exel Logistics: 1 in Mechanicsburg, 2 in New
Kingstown (acq. 3/18/97 subsequent to Pacific Place
merger)
Bristol, PA: Jones Apparel (OWNED BY PHOENIX-acq. in
tax-free exchange 3/26/98)
Columbia, SC: Stone Container (acq. 5/15/98)
Florence, SC: Fleet Mortgage Group (acq. 7/1/98)
Dallas, TX: Firstplus Financial (acq. 9/4/97)
Houston, TX: Toys `R' Us (transfer Toys V 12/31/96-Owned
by Lexington Toy V Trust)
Salt Lake City, UT: Northwest Pipeline (transfer Red
Butte 5/22/96-Owned by Lexington Northwest Trust)
Lynwood, WA: Toys `R' Us (transfer Toys II 12/31/96-Owned
by Lexington Toy II Trust)
CONTINUED ON PAGE 3
<PAGE> 165
LEPERCQ CORPORATE INCOME FUND L.P. PAGE 3
NOTE: Delaware File #2085780
Barnhale Modesto Properties, L.P. merged into LCIF on
12/31/98.
Previously Qualified in Oregon 9/17/87 and withdrew
9/13/95.
Previously Qualified in California 9/26/86 and withdrew
11/22/95.
Marlborough, MA: Stratus Computer (purch. 1/30/90) SOLD
9/2/97.
Southington, CT: Hartford Fire Ins. (purch. 10/2/86)
transferred to LXP I, 6/3/98.
Waterloo, IA: Ryder (purch. 10/31/97) transferred to LXP
I, 6/3/98.
L P CLOSINGS: Property L Ps exchange of L.P. Units only August 1, 1995
Red Butte L Ps closed May 22, 1996
Expansion L Ps closed December 31, 1996
Pacific Place L Ps merger March 10, 1997
Phoenix L Ps exchange of L.P. Units January 29, 1998
Savannah L Ps exchange of L.P. Units January 29, 1998
Anchorage L Ps exchange of L.P. Units May 8, 1998
Trademark Lancaster L Ps exchange of L.P. Units June 19,
1998
Columbia L Ps exchange of L.P. Units January 22, 1999
<PAGE> 166
BARNES ROCKSHIRE ASSOCIATES LIMITED PARTNERSHIP
(formerly: Barngiant Rockshire Associates)
FORMED: May 1, 1977 Maryland (CT)
Refiled w/Sec. of State 3/7/91
QUALIFIED:
GENERAL PARTNER: Barnes Properties, Inc. (0%)
LCIF L.P. (2.5%)
LIMITED PARTNER: Investors (04.749%)
LCIF L.P. (92.751%)
TAX ID#: 13-3876952 (old #13-2974383)
TERM: l2/31/2057
PROPERTY: Rockville, MD: Giant Foods
NOTE: Exchange of Units to Lepercq Corporate Income Fund L.P.
effective 8/1/95.
<PAGE> 167
BARNGIANT LIVINGSTON ASSOCIATES LIMITED PARTNERSHIP
FORMED: June 30, 1976 Maryland (CT)
Refiled w/Sec. of State 7/1/82
QUALIFIED:
GENERAL PARTNER: Barnes Properties, Inc. (0%)
LCIF L.P. (1%)
LIMITED PARTNER: Investors (34.293%)
LCIF L.P. (64.707%)
TAX ID#: 13-3876953 (old #13-2888951)
TERM: 12/31/2034
PROPERTY: Oxon Hill, MD: Giant Foods
NOTE: Exchange of Units to Lepercq Corporate Income Fund L.P.
effective 8/1/95.
See Partnership Schematic.
<PAGE> 168
BARNHALE MODESTO PROPERTIES, L.P.
FORMED: December 28, 1973 New York L.P. MERGED 12/31/98
QUALIFIED: California (CT) 1/28/78
GENERAL PARTNER: Barnes Properties, Inc. (0%)
LCIF L.P. (2.5%)
LIMITED PARTNER: Investors (33.25%)
LCIF L.P. (64.25%)
TAX ID#: 13-3876954 (old #13-6681823)
TERM: 11/30/2075
PROPERTY: Laguna Hills, CA: Carter Hawley Hale Store (Orange County)
NOTE: MERGED INTO LCIF L.P. ON 12/31/98.
Exchange of Units to Lepercq Corporate Income Fund L.P.
effective 8/1/95.
<PAGE> 169
BARNHECH MONTGOMERY ASSOCIATES LIMITED PARTNERSHIP
FORMED: June 24, 1980 Maryland, Montgomery County (CT)
Refiled w/Sec. of State 7/1/82
QUALIFIED:
GENERAL PARTNER: Barnes Properties, Inc. (0%)
LCIF L.P. (1%)
LIMITED PARTNER: Investors (66.15%)
LCIF L.P. (32.85%)
TAX ID#: 13-3030553
TERM: 12/31/2056
PROPERTY: Bethesda (Montgomery County), MD: Hechinger
NOTE: Exchange of Units to Lepercq Corporate Income Fund L.P.
effective 8/1/95.
<PAGE> 170
BARNVYN BAKERSFIELD ASSOCIATES L.P.
FORMED: January 3, 1977 California
Refiled w/Sec. of State 4/22/93
QUALIFIED:
GENERAL PARTNER: Barnes Properties, Inc. (0%)
LCIF L.P. (2.5%)
LIMITED PARTNER: Investors (81%)
LCIF L.P. (16.5%)
TAX ID#: 13-2900292
TERM: 12/31/2027
PROPERTY: Bakersfield, CA: Mervyns
NOTE: Exchange of Units to Lepercq Corporate Income Fund L.P.
effective 8/1/95.
<PAGE> 171
BARNWARD BROWNSVILLE PROPERTIES
FORMED: December 28, 1973 New York L.P.
QUALIFIED:
GENERAL PARTNER: Barnes Properties, Inc. (0%)
LCIF L.P. (2.5%)
LIMITED PARTNER: Investors (38%)
LCIF L.P. (59.5%)
TAX ID#: 13-3876957 (old #13-6684422)
TERM: 11/30/2075
PROPERTY: Brownsville, TX: Montgomery Ward
NOTE: Exchange of Units to Lepercq Corporate Income Fund L.P.
effective 8/1/95.
<PAGE> 172
UNION HILLS ASSOCIATES
FORMED: November 17, 1986 Arizona General Partnership
QUALIFIED:
MANAGING PARTNER: Lepercq Corporate Income Fund L.P. (99%)
PARTNER: Union Hills Associates II (1%)
TAX ID#: 13-3779863 (old #13-3388433)
TERM: 12/31/2026
PROPERTY: Glendale, AZ: Honeywell (formerly Sperry Space)
NOTE:
<PAGE> 173
UNION HILLS ASSOCIATES II
FORMED: November 17, 1986 Arizona General Partnership
QUALIFIED:
MANAGING PARTNER: Lepercq Corporate Income Fund L.P. (99%)
PARTNER: Union Hills , Inc. (1%)
TAX ID#: 13-3779862 (old #13-3388434)
TERM: 12/31/2026
PROPERTY: Glendale, AZ: Honeywell (OWNED BY UNION HILLS ASSOCIATES)
NOTE:
<PAGE> 174
UNION HILLS, INC.
ORGANIZED: Delaware (CT) October 10, 1986
QUALIFIED: Arizona (CT) November 21, 1986
Oregon (CT) December 20, 1988
WITHDRAWAL 12/15/95
STOCK: Authorized: 1,000 Common, $1.00 Par
Value
Issued & Out: 1,000 shares @ $1,000 Agg.
(100%) to LCP Group
DIRECTORS: E. Robert Roskind
OFFICERS: President: E. Robert Roskind
Vice Presidents: Richard J. Rouse
T. Wilson Eglin
Patrick Carroll
(elected 1/1/99)
Denise E. DeBaun
Secretary: E. Robert Roskind
Assistant Secretary: Patrick Carroll
(elected 1/1/99)
TAX ID#: 13-3378935
DESCRIPTION: A Partner of Union Hills Associates II, which is an
Arizona General Partnership. LCIF is the Managing Partner
of the partnership, as well as of Union Hills Associates.
Former Partner of F.M. Associates II, an Oregon General
Partnership of which LCIF was the managing G.P.
PROPERTY: Phoenix, AZ -Honeywell -- OWNED BY UNION HILLS ASSOCIATES
<PAGE> 175
LEXINGTON FEDERAL WAY L.L.C.
ORGANIZED: Washington (CT) May 7, 1998
QUALIFIED:
OWNERSHIP: Phoenix Hotel Associates Limited Partnership (100.00%)
MANAGERS: Phoenix Hotel Associates Limited Partnership
MEMBERS: Phoenix Hotel Associates Limited Partnership
TERM: December 31, 2048
TAX ID#: same as Phoenix: 86-0377297
DESCRIPTION: Formed to purchase property.
PROPERTY: Federal Way, WA: Eagle Hardware (purch. 5/8/98)
NOTE: Part of 1031 Tax-Free Exchange.
<PAGE> 176
LEXINGTON ANCHORAGE L.L.C.
ORGANIZED: Delaware (CT) May 7, 1998
QUALIFIED: Alaska (CT) May 18, 1998
OWNERSHIP: Phoenix Hotel Associates Limited Partnership (100.00%)
MANAGERS: Phoenix Hotel Associates Limited Partnership
MEMBERS: Phoenix Hotel Associates Limited Partnership
TERM: December 31, 2048
TAX ID#: same as Phoenix: 86-0377297
DESCRIPTION: Formed to purchase property.
PROPERTY: Anchorage, AK: Eagle Hardware (purch. 5/8/98)
NOTE: Exchange of LCIF Units.
Part of 1031 Tax-Free Exchange.
<PAGE> 177
SAVANNAH WATERFRONT HOTEL LLC
ORGANIZED: Georgia (CT) November 15, 1995
QUALIFIED: Kentucky (CT) March 18,1998
OWNERSHIP: Lepercq Corporate Income Fund L.P. (100.00%)
MANAGERS: Lepercq Corporate Income Fund L.P.
MEMBERS: Lepercq Corporate Income Fund L.P.
TERM: Maximum permitted under Georgia statute.
TAX ID#: 58-2206613
DESCRIPTION: (Originally formed to own and operate the Savannah Hyatt
Regency; Waterfront Hotel Company, the former owner of
the property, was merged into this company in April,
1996.)
PROPERTY: Hebron, KY: Fidelity Investments (purch. 3/27/98)
NOTE: Some Members exchanged ownership for Units in LCIF
1/29/98. IRS Section 1031 Tax Free Exchange: purched
Fidelity. Formerly owned Hyatt Regency Hotel in Savannah,
GA --SOLD 1/8/98.
<PAGE> 178
NORTH TAMPA ASSOCIATES
FORMED: March 29, 1988 Florida General Partnership
QUALIFIED:
MANAGING PARTNER: Lepercq Corporate Income Fund II L.P. (99.9%)
PARTNER: North Tampa-II, Inc. (0.1%)
TAX ID#: 13-3779865 (old #13-3468236)
TERM: 12/31/2028
PROPERTY: Tampa, FL: Time, Inc.
NOTE:
<PAGE> 179
NORTH TAMPA-II, INC.
ORGANIZED: Delaware (CT) March 29, 1988
QUALIFIED:
STOCK: Authorized: 200 Common, $0.01 Par Value
Issued & Out: 1 share @ $10 Agg. to LCP
Group (100%)
DIRECTORS: E. Robert Roskind
OFFICERS: President: E. Robert Roskind
Vice Presidents: T. Wilson Eglin
Patrick Carroll
(elected 1/1/99)
Denise E. DeBaun
Secretary: E. Robert Roskind
Assistant Secretary: Patrick Carroll
(elected 1/1/99)
TAX ID#: 13-3468072
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. -- OWNED BY NORTH TAMPA ASSOCIATES
<PAGE> 180
LEPERCQ CORPORATE INCOME FUND II L.P.
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
GENERAL PARTNER: Lex GP-1, Inc. (0.62852%)
LIMITED PARTNER: Lex LP-1, Inc. (63.84614%)
SPECIAL L PS: Roskind (.44231%); Rouse (.16999%); Whiting (.09499%);
Altabef (.06919%); A. Monk (.04459%); E. Monk (.04459%);
The LCP Group (.30764%)--Total 1.07831%.
PHOENIX L P: E. Robert Roskind (4.44125%)
WARREN L P: Warren Property Associates
G P OF: Phoenix Hotel Associates Limited Partnership (1%)
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. (OWNED BY NORTH TAMPA ASSOCIATES--purch.
3/31/88)
Tampa, FL: Time Cust. Svc. (purch. 11/3/87)
NOTE: 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.
L P CLOSINGS: Phoenix Hotel Associates Limited Partnership: Exchange of L.P.
Units 1/29/98.
Warren Property Associates: Exchange of L.P. Units 8/27/98.
<PAGE> 181
EXHIBIT O
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 Unsecured Revolving Credit Agreement
dated as of July ___, 1998 (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 TRUST; LEPERCQ CORPORATE INCOME FUND L.P.;
LEPERCQ CORPORATE INCOME FUND II L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.;
LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP; and SAVANNAH
WATERFRONT HOTEL, LLC, 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, consistently applied throughout the period
referenced therein, 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 are 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 identified in
Schedule I. Each Borrower has duly performed and complied with each
covenant, condition, agreement and other obligation of or applicable to
such Borrower
<PAGE> 182
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):
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.
WITNESS the due execution of this Certificate by the undersigned's duly
authorized representative on , 199_.
LEXINGTON CORPORATE PROPERTIES TRUST
as Borrowers' Representative
By:_______________________________________
Its:_________________________________
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<PAGE> 183
SCHEDULE I TO COVENANT COMPLIANCE CERTIFICATE DATED [ ]
Covenants:
<TABLE>
<S> <C> <C> <C> <C>
1. Minimum Estimated Net Worth
of Borrowers and Guarantors (Section 7.1(a))
(a) Capitalized Value (from Schedule II) $__________
(b) Unrestricted cash and Cash Equivalents $__________
(c) Total Liabilities $__________
Estimated Net Worth (sum of (a) plus (b)
minus (c)): $__________
Must be greater than or equal to the sum of:
(a) $225,000,000 $225,000,000
(b) 75% of the Net Securities Proceeds received by
Lexington after July _____, 1998 $
____________
Total of (a) plus (b) $__________
2. Debt Service Coverage for the two (2) most recent fiscal quarters
(Section 7.1(b))
(a) EBIDA less Cap Exp (from Schedule II) $__________
(b) Debt Service
(i) Interest expense $__________
(ii) Principal payments $__________
Debt Service (sum of (i) plus (ii)) $__________
Debt Service Coverage ((a) divided by (b)) ___________
Must be greater than or equal to (i) 1.65 x from the Closing Date
through December 31, 1998 and (ii) 1.75x from March 31, 1999
through Revolving Credit Termination Date.
3. Total Debt to Capitalized Value (from Schedule II) (Section 7.1(c))
(a) Total Debt $__________
(b) Capitalized Value (from Schedule II) $__________
Total Debt to Capitalized Value (from Schedule II)
((a) divided by (b) converted to a percentage) __________%
Must not exceed 55%
</TABLE>
<PAGE> 184
<TABLE>
<S> <C> <C> <C>
4. Unencumbered liquidity (Section 7.1(d))
(a) Unrestricted Cash and Cash Equivalents $__________
(b) Current Availability under Maximum
Revolving Credit Commitment $__________
Liquidity (sum of (a) and (b)) $___________
Must not be less than $5,000,000
5. Maximum Secured Recourse
Debt to Capitalized Value
(from Schedule II) (Section 7.1(e))
(a) Total Secured Recourse Debt $__________
(b) Capitalized Value (from Schedule II) $__________
Secured Recourse Debt to Capitalized Value (from Schedule II)
((a) divided by (b) converted to a percentage) ___________%
Must not exceed 15%
6. Maximum Loan to Value of Secured Recourse Debt for each Property
(see attached Schedule of Properties with Supporting Information)
Section 7.1(e)
Must not exceed 75% as determined in accordance with Section 7.1(e)
7. Maximum Permitted Investments (Section 7.1(f))
(a) Notes and Mortgages $__________
(b) Unimproved Real Estate $__________
(c) Capitalized Value (from Schedule II) $__________
Maximum Permitted Notes and Mortgages ____________%
(quotient of (a) divided by (c)
and converted to a percentage)
Maximum Unimproved Real Estate
((b) divided by (c) and converted to a percentage) ____________%
Must not exceed 5% of Capitalized Value in each case
</TABLE>
-2-
<PAGE> 185
SCHEDULE I (Continued)
<TABLE>
<S> <C> <C>
8 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) -------------%
/ Capitalized Value and converted to a percentage)
Must be less than or equal to 12.5% Capitalized Value
9. Limitation 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 Capitalized Value $
---------------
(a) must be less than (b)
10. Minimum Fixed Charge Coverage (Section 7.1(i))
(a) EBIDA less Cap Exp (from Schedule II) $
---------------
(b) Debt Service $
---------------
(c) Preferred distributions (including dividends) $
---------------
The ratio of (a) to the sum of ((b) plus (c)) ---------------
May not be less than 1.5:1.0
</TABLE>
-3-
<PAGE> 186
SCHEDULE I (Continued)
<TABLE>
<S> <C> <C>
11. Maximum Secured Debt to Capitalized Value (Section 7.1(j))
(a) Secured debt or guarantees in respect of
money borrowed on a consolidated basis $___________
(b) 45% of Capitalized Value $___________
(c) 40% of Capitalized Value $___________
(a) must be less than (b) from the Closing Date through December 30,
1998 and (a) must be less than (c) from December 31, 1998 through the
Revolving Credit Termination Date.
12. Total Unsecured Debt (Section 7.1(k))
(a) Total Unsecured Debt $___________
(b) Maximum Availability $___________
(a) must not exceed (b) at any time.
13. Limitations on Distributions to FFO (Section 7.1(l))
(a) Distributions to Shareholders for four most recent fiscal
quarters $___________
(b) Funds from Operations for four most recent fiscal quarters
$___________
Distributions to FFO [(a) divided by (b)] must not exceed 95%. _______%
14. Joint Venture Ownership Interest (Section 7.1(m)).
(a) Joint Venture Ownership Interest Value $___________
(b) 15% of Capitalized Value $___________
(a) must not exceed (b) at any time.
</TABLE>
-4-
<PAGE> 187
Executed as of the day of , 199 .
--------- ---------- -
LEXINGTON CORPORATE PROPERTIES, INC.
As Borrowers' Representative
By:
--------------------------------------
Its:
--------------------------------
-5-
<PAGE> 188
SCHEDULE II WORKSHEET TO COVENANT COMPLIANCE CERTIFICATE DATED [ ]
Calculations:
<TABLE>
<CAPTION>
Fiscal Fiscal Previous 2
Quarter Quarter Fiscal
Quarters
-------------- -------------- ----------
<S> <C> <C> <C> <C>
1. EBIDA $ $ $
(a) Consolidated net income from operations $ $ $
(b) Plus depreciation and amortization $ $ $
(c) Plus interest expense $ $ $
(d) Adjustment for gains (losses) from asset
sales and extraordinary items.
(e) Adjustment for minority interest of any Borrower $ $ $
or Guarantor to the extent deducted from (a) above --------- ---------- -------
EBIDA (sum of (a) through (e)) $ $ $
less non - incremental revenue generating capital
expenditures ("Cap Exp") $ $ $
--------- --------- --------
EBIDA less Cap Exp $ $ $
2. Adjusted EBIDA for Capitalized Value Calculation
(f) EBIDA $ $ $
(g) Pro forma/Historical adjustment for asset sales $ $ $
(h) Pro forma/Historical adjustment for acquisitions $ $ $
Adjusted EBIDA for Capitalized Value (sum of (f) $ $ $
through (h))
3. Capitalized Value
(a) Adjusted EBIDA for the two previous fiscal $
quarters
(b) Capitalization rate. (9.5%)
Capitalized Value (((a) multiplied by (2)) divided by (b)) $
</TABLE>
<PAGE> 189
<TABLE>
<CAPTION>
Fiscal Quarter Fiscal Quarter Previous 2 Fiscal Quarters
-------------- -------------- --------------------------
<S> <C> <C> <C>
Consolidated Net Income
Depreciation
Amortization
Interest
Minority Interest
Ext. Gains/Loss
Ext. Gains/Loss From Property Sold
EBIDA From Property Sold
EBIDA
</TABLE>
New Investments, Acquisitions and Dispositions
-2-
<PAGE> 190
EXHIBIT P
FORM OF TENANT ESTOPPEL CERTIFICATE
To: Fleet National Bank ("Lender")
111 Westminster Street, Suite 800
Providence, RI 02903
Re: _______________(the "Premises")
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
TRUST; LEPERCQ CORPORATE INCOME FUND L.P.; LEPERCQ CORPORATE INCOME FUND II
L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.; LEX GP-1, INC.; PHOENIX HOTEL
ASSOCIATES LIMITED PARTNERSHIP; and SAVANNAH WATERFRONT HOTEL, LLC, jointly and
severally, as "Borrowers" under an Unsecured Revolving Credit Agreement dated as
of July __, 1998, ("Credit Agreement") by and between Borrowers, the
institutions from time to time party thereto as Lenders and Fleet National Bank
as Agent.
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_______________.
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
<PAGE> 191
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;
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
-2-
<PAGE> 192
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 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:
-3-
<PAGE> 193
* * *
The undersigned, the Borrowers' Representative, 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 TRUST
as Borrowers' Representative
By:___________________________
Its:______________________
-4-
<PAGE> 194
EXHIBIT Q
ERISA MATTERS
None.
<PAGE> 195
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 Unsecured Revolving Credit
Agreement dated as of July __, 1998 (as the same may be amended, supplemented,
restated or otherwise modified from time to time, the "Credit Agreement") among
LEXINGTON CORPORATE PROPERTIES TRUST; LEPERCQ CORPORATE INCOME FUND L.P.;
LEPERCQ CORPORATE INCOME FUND II L.P.; UNION HILLS ASSOCIATES; LEX LP-I, INC.;
LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP; and SAVANNAH
WATERFRONT HOTEL, LLC, 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
<PAGE> 196
responsibility with respect to any statements, warranties or representations
made in or in 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").
- --------
(1) If the Assignee is organized under the laws of a jurisdiction outside the
United States.
-2-
<PAGE> 197
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 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 NEW YORK.
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> 198
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> 199
EXHIBIT S
FORM OF GUARANTY
Guaranty, dated as of __________ ___, 19 by _______________, a
_____________ ____________ (the "Guarantor"), in favor of each of the Lenders
(as defined herein) and Fleet National Bank, as Agent (in such capacity, the
"Agent") for itself and for the other financial institutions (collectively, the
"Lenders") which are or may become parties to the Unsecured Revolving Credit
Agreement dated as of July _____1998 among LEXINGTON CORPORATE PROPERTIES TRUST;
LEPERCQ CORPORATE INCOME FUND L.P.; LEPERCQ CORPORATE INCOME FUND II L.P.; UNION
HILLS ASSOCIATES; LEX LP-I, INC.; LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES
LIMITED PARTNERSHIP; and SAVANNAH WATERFRONT HOTEL, LLC, (collectively the
"Borrowers" and individually a "Borrower"), the Agent and the Lenders, as the
same may hereafter be amended from time to time (the "Credit Agreement").
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Credit Agreement.
WHEREAS, the Borrowers, the Agent, the Lenders and the other parties
thereto have entered into the Credit Agreement;
WHEREAS, the Borrowers and the Guarantor are members of a group of
related entities, the success of either one of which is dependent in part on the
success of the other members of such group;
WHEREAS, the Guarantor expects to receive substantial direct and
indirect benefits from the extensions of credit to the Borrowers by the Lenders
pursuant to the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition precedent to the Agent's and the Lenders'
willingness to extend, and to continue to extend, credit to the Borrowers under
the Credit Agreement that the Guarantor execute and deliver this Guaranty; and
WHEREAS, the Guarantor wishes to guaranty each Borrower's
obligations to the Lenders and the Agent under and in respect of the Credit
Agreement as herein provided.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Guaranty of Payment and Performance of Obligations. In
consideration of the Lenders making the Loans under the Credit Agreement to
each Borrower, the Guarantor hereby unconditionally guarantees to the Agent and
each Lender that each Borrower will duly and punctually pay or perform in
accordance with the Credit Agreement, (i) all indebtedness,
<PAGE> 200
obligations and liabilities of each Borrower to any of the Lenders and the
Agent, individually or collectively, under the Credit Agreement or any of the
other Loan Documents or in respect of any of the Loans or the Notes
(collectively the "Obligations" and individually an "Obligation"). This Guaranty
is an absolute, unconditional and continuing guaranty of the full and punctual
payment and performance by each Borrower of the Obligations and not of their
collectibility only and is in no way conditioned upon any requirement that any
Lender or the Agent first attempt to collect any of the Obligations from any
Borrower or resort to any security or other means of obtaining payment of any of
the Obligations which any Lender or the Agent now has or may acquire after the
date hereof or upon any other contingency whatsoever. Upon any Event of Default
which is continuing by each Borrower in the full and punctual payment and
performance of the Obligations, the liabilities and obligations of the Guarantor
hereunder shall, at the option of the Agent, become forthwith due and payable to
the Agent and to the Lender or Lenders owed the same without demand or notice of
any nature, all of which are expressly waived by the Guarantor, except for
notices required to be given to such Borrower under the Loan Documents. Payments
by the Guarantor hereunder may be required by any Lender or the Agent on any
number of occasions.
2. Guarantor's Further Agreements to Pay. The Guarantor further
agrees, as the principal obligor and not as a guarantor only, to pay to the
Agent forthwith upon demand, in funds immediately available to the Agent, all
reasonable costs and expenses (without duplication of any such costs or expenses
incurred under the Credit Agreement) (including court costs and reasonable legal
fees and expenses) incurred or expended by the Agent in connection with this
Guaranty and the enforcement hereof after the occurrence and during the
continuance of an Event of Default, together with interest on amounts
recoverable under this Guaranty from the time after such amounts become due at
the default rate of interest set forth in the Credit Agreement; provided that if
such interest exceeds the maximum amount permitted to be paid under applicable
law, then such interest shall be reduced to such maximum permitted amount.
3. Payments. The Guarantor covenants and agrees that the Obligations
will be paid strictly in accordance with their respective terms regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent or any Lender with
respect thereto.
4. Taxes. All payments hereunder shall be made without any
counterclaim or set-off, free and clear of, and without reduction by reason of,
any taxes, levies, imposts, charges and withholdings, restrictions or conditions
of any nature ("Taxes"), which are now or may hereafter be imposed, levied or
assessed by the United States or any political subdivision or taxing authority
thereof (or any non-United States jurisdiction in which there is Unencumbered
Eligible Property) on payments hereunder, all of which will be for the account
of and paid by the Guarantor. If for any reason, any such reduction is made or
any Taxes are paid by the Agent or any Lender (except for taxes on income or
profits of such Agent or Lender), Guarantor will pay to the Agent or such Lender
such additional amounts as may be necessary to ensure that the Agent or such
Lender receives the same net amount which it would have received had no
reduction been made or Taxes paid.
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5. Consent to Jurisdiction. The Guarantor agrees that any suit for
the enforcement of this Guaranty or any of the other Loan Documents may be
brought in the courts of the State of New York sitting in New York, New York or
any federal court sitting in New York, New York and consents to the
non-exclusive jurisdiction of such courts and the service of process in any such
suit being made upon the Guarantor by mail at the address specified herein.
Except to the extent such waiver is expressly prohibited by law, the Guarantor
hereby waives any objection that it may now or hereafter have to the venue of
any such suit or any such court or that such suit is brought in an inconvenient
court.
6. Liability of the Guarantor. The Agent on behalf of each Lender
shall have the absolute right to enforce the liability of the Guarantor
hereunder without resort to any other right or remedy including any right or
remedy under any other guaranty, and the release or discharge of any guarantor
of any Obligations shall not affect the continuing liability of the Guarantor
hereunder.
It is the intention and agreement of the Guarantor, the Agent and
the Lenders that the obligations of the Guarantor under this Guaranty shall be
valid and enforceable against the Guarantor to the maximum extent permitted by
applicable law. Accordingly, if any provision of this Guaranty creating any
obligation of the Guarantor in favor of the Agent and the Lenders shall be
declared to be invalid or unenforceable in any respect or to any extent, it is
the stated intention and agreement of the Guarantor, the Agent and the Lenders
that any balance of the obligation created by such provision and all other
obligations of the Guarantor to the Agent and the Lenders created by other
provisions of this Guaranty shall remain valid and enforceable. Likewise, if by
final order a court of competent jurisdiction shall declare any sums which the
Agent or the Lenders may be otherwise entitled to collect from the Guarantor
under this Guaranty to be in excess of those permitted under any law (including
any federal or state fraudulent conveyance or like statute or rule of law)
applicable to the Guarantor's obligations under this Guaranty, it is the stated
intention and agreement of the Guarantor, the Agent and the Lenders that all
sums not in excess of those permitted under such applicable law shall remain
fully collectible by the Agent and the Lenders from the Guarantor. Nothing in
the foregoing limits the covenant of certain Borrowers contained in Section 6.22
of the Credit Agreement.
7. Representations and Warranties; Covenants. (a) The Guarantor
hereby makes and confirms the representations and warranties made on its behalf
by the Borrowers pursuant to Section 4 of the Credit Agreement, as if such
representations and warranties were set forth herein. The Guarantor hereby
agrees to perform the covenants set forth in Sections 6 and 7 of the Credit
Agreement (to the extent such covenants expressly apply to the Guarantor) as if
such covenants were set forth herein. The Guarantor acknowledges that it is, on
a collective basis with the Borrowers and all other "Guarantors" (as defined in
the Credit Agreement), bound by the covenants set forth in Section 7.1 of the
Credit Agreement. The Guarantor hereby confirms that it shall be bound by all
acts or omissions of the Borrowers pursuant to the Credit Agreement.
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<PAGE> 202
(b) The Guarantor is a ______________ duly organized, validly
existing and in good standing under the laws of the State of ________________
the Guarantor has all requisite power to own its respective properties and
conduct its respective business as now conducted and as presently contemplated;
and the Guarantor is in good standing as a foreign entity and is duly authorized
to do business in the jurisdictions where the Unencumbered Eligible Properties
or other Property owned or ground-leased by it are located and in each other
jurisdiction where such qualification is necessary except where a failure to be
so qualified in such other jurisdiction would not have a materially adverse
effect on any of its businesses, assets or financial condition. The execution,
delivery and performance of this Guaranty and the transactions contemplated
hereby (i) are within the authority of the Guarantor, (ii) have been duly
authorized by all necessary proceedings on the part of the Guarantor and any
general partner or other controlling Person thereof, (iii) do not conflict with
or result in any breach or contravention of any provision of law, statute, rule
or regulation to which the Guarantor is subject or any judgment, order, writ,
injunction, license or permit applicable to the Guarantor, (iv) do not conflict
with any provision of the organizational documents of the Guarantor or the
authority documents of any controlling Person thereof, and (v) do not contravene
any provisions of, or constitute a Default or Event of Default hereunder or
under the Credit Agreement or a failure to comply with any term, condition or
provision of, any other agreement, instrument, judgment, order, decree, permit,
license or undertaking binding upon or applicable to the Guarantor or any of the
Guarantor's properties (except for any such failure to comply under any such
other agreement, instrument, judgment, order, decree, permit, license, or
undertaking as would not materially and adversely affect the condition
(financial or otherwise), properties, business or results of operations of the
Guarantor) or result in the creation of any mortgage, pledge, security interest,
lien, encumbrance or charge upon any of the properties or assets of the
Guarantor.
(c) The Guaranty has been duly executed and delivered and
constitutes the legal, valid and binding obligations of the Guarantor, subject
only to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and to the fact that the availability of the
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding therefor may be brought.
(d) The execution, delivery and performance by the Guarantor of this
Guaranty and the transactions contemplated hereby do not require (i) the
approval or consent of any governmental agency or authority other than those
already obtained, or (ii) filing with any governmental agency or authority.
8. Effectiveness. The obligations of the Guarantor under this
Guaranty shall continue in full force and effect and shall remain in operation
until all of the Obligations shall have been paid in full or otherwise fully
satisfied, and continue to be effective or be reinstated, as the case may be, if
at any time payment or other satisfaction of any of the Obligations is rescinded
or must otherwise be restored or returned upon the bankruptcy, insolvency, or
reorganization of any Borrower, or otherwise, as though such payment had not
been made or other satisfaction occurred. No invalidity, irregularity or
unenforceability of the Obligations
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<PAGE> 203
by reason of applicable bankruptcy laws or any other similar law, or by reason
of any law or order of any government or agency thereof purporting to reduce,
amend or otherwise affect the Obligations, shall impair, affect, be a defense to
or claim against the obligations of the Guarantor under this Guaranty.
9. Freedom of Lender to Deal with each Borrower and Other Parties.
The Agent and each Lender shall be at liberty, without giving notice to or
obtaining the assent of any Guarantor and without relieving the Guarantor of any
liability hereunder, to deal with any Borrower and with each other party who now
is or after the date hereof becomes liable in any manner for any of the
Obligations, in such manner as the Agent or such Lender in its sole discretion
deems fit, and to this end the Guarantor gives to the Agent and each Lender full
authority in its sole discretion to do any or all of the following things: (a)
extend credit, make loans and afford other financial accommodations to any
Borrower at such times, in such amounts and on such terms as the Agent or such
Lender may approve, (b) vary the terms and grant extensions of any present or
future indebtedness or obligation of any Borrower or of any other party to the
Agent or such Lender, (c) grant time, waivers and other indulgences in respect
thereto, (d) vary, exchange, release or discharge, wholly or partially, or delay
in or abstain from perfecting and enforcing any security or guaranty or other
means of obtaining payment of any of the Obligations which the Agent or any
Lender now has or may acquire after the date hereof, (e) accept partial payments
from any Borrower or any such other party, (f) release or discharge, wholly or
partially, any endorser or guarantor, and (g) compromise or make any settlement
or other arrangement with any Borrower or any such other party.
10. Unenforceability of Obligations Against Any Borrower; Invalidity
of Security or Other Guaranties. If for any reason any Borrower has no legal
existence or is under no legal obligation to discharge any of the Obligations
undertaken or purported to be undertaken by it or on its behalf, or if any of
the moneys included in the Obligations have become irrecoverable from such
Borrower by operation of law or for any other reason, this Guaranty shall
nevertheless be binding on the Guarantor to the same extent as if the Guarantor
at all times had been the principal debtor on all such Obligations. This
Guaranty shall be in addition to any other guaranty or other security for the
Obligations, and it shall not be prejudiced or rendered unenforceable by the
invalidity of any such other guaranty or security.
11. Waivers by Guarantor. The Guarantor waives: notice of acceptance
hereof, notice of any action taken or omitted by the Agent or any Lender in
reliance hereon, and any requirement that the Agent or any Lender be diligent or
prompt in making demands hereunder, giving notice of any default by any Borrower
or asserting any other rights of the Agent or any Lender hereunder, except for
any notice expressly required under the Credit Agreement or other Loan
Documents. The Guarantor also irrevocably waives, to the fullest extent
permitted by law, all defenses in the nature of suretyship that at any time may
be available in respect of the Guarantor's obligations hereunder by virtue of
any statute of limitations, valuation, stay, moratorium law or other similar law
now or hereafter in effect.
12. Restriction on Subrogation and Contribution Rights.
Notwithstanding any other provision to the contrary contained herein or provided
by applicable law, unless and until all
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<PAGE> 204
of the Obligations have been indefeasibly paid in full in cash and satisfied in
full, the Guarantor hereby irrevocably defers and agrees not to enforce any and
all rights it may have at any time (whether arising directly or indirectly, by
operation of law or by contract) to assert any claim against any Borrower on
account of payments made under this Guaranty, including, without limitation any
and all rights of or claim for subrogation, contribution, reimbursement,
exoneration and indemnity, and further waives any benefit of and any right to
participate in any collateral which may be held by the Agent or any Lender or
any affiliate of the Agent or any Lender. In addition, the Guarantor will not
claim any set-off or counterclaim against the Borrowers in respect of any
liability it may have to any Borrower unless and until all of the Obligations
have been indefeasibly paid in full in cash and satisfied in full.
Subject to the foregoing and the indefeasible performance and
payment in full of the Obligations, the Guarantor acknowledges that all other
"Guarantors" shall have contribution rights against the Guarantor in accordance
with applicable law and in accordance with each such Person's benefits received
under the Credit Agreement and the Loans.
13. Demands. Any demand on or notice made or required to be given
pursuant to this Guaranty shall be in writing and shall be delivered in hand,
mailed by United States registered or certified first class mail, postage
prepaid, return receipt requested, sent by overnight courier, or sent by
telegraph, telecopy, telefax or telex and confirmed by delivery via courier or
postal service, addressed as follows:
(a) If to the Guarantor, at:
c/o Lexington Corporate Properties Trust
355 Lexington Avenue
New York, NY 10017
Attn: T. Wilson Eglin
or at such other address for notice as the Guarantor
shall last have furnished in writing to the Agent with
a copy to:
Paul, Hastings, Janofsky & Walker LLP
399 Park Avenue, 31st Floor
New York, NY 10022
Attn: John P. Howitt, Esq.
or at such other address for notice as the Guarantor
shall last have furnished in writing to the Agent; and
(b) if to the Agent, at One Federal Street, 7th Floor, Boston,
Massachusetts 02211, Mail Code MAOFDO7C, Attention: John Mann and to 111
Westminster Street, 8th Floor, Providence, Rhode Island 02903, Attention: Mark
Dalton or such other address for notice as the Agent shall last have furnished
in writing to the Guarantor, with a copy to Edwards & Angell LLP, 101 Federal
Street, Boston, Massachusetts, 02110, Attention: Lorne
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W. McDougall, Esq. or at such other address for notice as the Agent shall last
have furnished in writing to the Guarantor.
(c) if to any Lender, at such Lender's address as set forth in the
Credit Agreement or as shall have last been furnished in writing to the Person
giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to the party to which it is directed, at the time of the receipt
thereof by such party or the sending of such facsimile or (ii) if sent by
registered or certified first-class mail, postage prepaid, return receipt
requested, on the fifth Business Day following the mailing thereof.
14. Amendments, Waivers, Etc.. No provision of this Guaranty can be
changed, waived, discharged or terminated except by an instrument in writing
signed by the Agent and the Guarantor expressly referring to the provision of
this Guaranty to which such instrument relates; and no such waiver shall extend
to, affect or impair any right with respect to any Obligation which is not
expressly dealt with therein. No course of dealing or delay or omission on the
part of the Agent or the Lenders or any of them in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto.
15. Further Assurances. The Guarantor at its sole cost and expense
agrees to do all such things and execute, acknowledge and deliver all such
documents and instruments as the Agent from time to time may reasonably request
in order to give full effect to this Guaranty and to perfect and preserve the
rights and powers of the Agent and the Lenders hereunder.
16. Miscellaneous Provisions. This Guaranty shall be governed by and
construed in accordance with the laws of the State of New York (excluding the
laws applicable to conflicts or choice of law) and shall inure to the benefit of
the Agent, each Lender and its respective successors in title and assigns
permitted under the Credit Agreement, and shall be binding on the Guarantor and
the Guarantor's successors in title, assigns and legal representatives. The
rights and remedies herein provided are cumulative and not exclusive of any
remedies provided by law or any other agreement. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
17. WAIVER OF JURY TRIAL. EXCEPT TO THE EXTENT SUCH WAIVER IS
EXPRESSLY PROHIBITED BY LAW, THE GUARANTOR HEREBY IRREVOCABLY WAIVES TRIAL BY
JURY IN ANY JURISDICTION AND IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH,
OR ARISING OUT OF THIS GUARANTY, THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT
DELIVERED PURSUANT HERETO OR THERETO OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER
ARISING, AMONG THE GUARANTOR, THE BORROWER, THE ADMINISTRATIVE AGENT AND/OR THE
LENDERS. THIS WAIVER OF JURY TRIAL SHALL BE
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<PAGE> 206
EFFECTIVE FOR EACH AND EVERY DOCUMENT EXECUTED BY THE GUARANTOR, THE AGENT OR
THE LENDERS AND DELIVERED TO THE AGENT OR THE LENDERS, AS THE CASE MAY BE,
WHETHER OR NOT SUCH DOCUMENTS SHALL CONTAIN SUCH A WAIVER OF JURY TRIAL THE
GUARANTOR CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND FREELY MADE.
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<PAGE> 207
IN WITNESS WHEREOF, the Guarantor has executed and delivered this
Guaranty as of the date first above written.
GUARANTOR
By:
------------------------------
Name:
Title:
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<PAGE> 208
SCHEDULE 1
LIST OF INITIAL UNENCUMBERED
ELIGIBLE PROPERTIES AND THEIR OWNERS
Property Owner
-------- -----
1. 19019 N. 59th Avenue Union Hills Associates
Glendale, AZ
2. 7055 Highway 85 South Lexington Corporate
Riverdale, GA Properties Trust
3. Highway 21 South Lexington Corporate
Jacksonville, FL Properties Trust
4. 46600 Port Street Lexington Corporate
Plymouth, MI Properties Trust
5. 15911 Progress Drive Lexington Corporate
Cottondale, AL Properties Trust
6. 1301 California Drive Lepercq Corporate
Milipitas, CA Income Fund
7. 250 Rittenhouse Circle Phoenix Hotel Associates
Bristol, PA Limited Partnership
8. 160 Claremont Road Lepercq Corporate
Decatur, GA Income Fund
9. 2210 Enterprise Drive Lepercq Corporate
Florence, SC Income Fund
<PAGE> 209
UNSECURED REVOLVING CREDIT NOTE
$25,000,000 Dated: July 22, 1998
FOR VALUE RECEIVED, the undersigned, LEXINGTON CORPORATE PROPERTIES TRUST;
LEPERCQ CORPORATE INCOME FUND L.P.; LEPERCQ CORPORATE INCOME FUND II L.P.; UNION
HILLS ASSOCIATES; LEX LP-I, INC.; LEX GP-1, INC.; Phoenix Hotel Associates
Limited Partnership; and Savannah Waterfront Hotel, LLC (collectively, the
"Borrowers" and individually a "Borrower") HEREBY PROMISE TO PAY, jointly and
severally, to the order of FLEET NATIONAL BANK (the "Lender"), the lesser of (a)
TWENTY FIVE MILLION DOLLARS ($25,000,000) or (b) the aggregate principal amount
then outstanding of the Loans made by the Lender to the Borrowers pursuant to
that certain Unsecured Revolving Credit Agreement dated as of July 22, 1998,
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 July 22, 2001, 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 at the times and at the rates provided in the
Credit Agreement.
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.
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. Subsequent waivers shall
be at the Agent's discretion. 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 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.
This 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
reference is hereby made for a
<PAGE> 210
statement of the terms and conditions under which this Note may be prepaid or
the Obligations accelerated or extended. This Note evidences Borrowings under
and has been issued by the Borrowers in accordance with the terms of the Credit
Agreement. 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
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 NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWERS
AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND THE
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON EACH BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION OF THE CREDIT AGREEMENT. EACH BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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 and every endorser and guarantor of this Note of
the obligation represented 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
and asserts to any extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of any collateral and to
the addition or release of any other party primarily or secondarily liable.
2
<PAGE> 211
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 TRUST
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: President
LEPERCQ CORPORATE INCOME FUND L.P.
By: LEX GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
--------------------------------
T. Wilson Eglin
Its: Vice President
LEPERCQ CORPORATE INCOME FUND II L.P.
By: LEX GP-1, Inc., its general
By: /s/ T. Wilson Eglin
--------------------------------
T. Wilson Eglin
Its: Vice President
UNION HILLS ASSOCIATES
By: Lepercq Corporate Income
Fund, L.P., its general partner
By: Lex GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
3
<PAGE> 212
LEX GP-1, INC.
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: Vice President
LEX LP-1, INC.
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: Vice President
PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP
By: Lepercq Corporate Income Fund II, L.P.,
Its general partner
By: LEX GP-1, Inc., its general partner
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
SAVANNAH WATERFRONT HOTEL, LLC.
By: Lepercq Corporate Income Fund, L.P.,
Its general partner
By: LEX GP-1, Inc.
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
4
<PAGE> 213
UNSECURED REVOLVING CREDIT NOTE
$20,000,000 Dated: July 22, 1998
FOR VALUE RECEIVED, the undersigned, LEXINGTON CORPORATE PROPERTIES TRUST;
LEPERCQ CORPORATE INCOME FUND L.P.; LEPERCQ CORPORATE INCOME FUND II L.P.; UNION
HILLS ASSOCIATES; LEX LP-I, INC.; LEX GP-1, INC.; PHOENIX HOTEL ASSOCIATES
LIMITED PARTNERSHIP; and SAVANNAH WATERFRONT HOTEL, LLC (collectively, the
"Borrowers" and individually a "Borrower") HEREBY PROMISE TO PAY, jointly and
severally, to the order of KEYBANK NATIONAL ASSOCIATION (the "Lender"), the
lesser of (a) TWENTY MILLION DOLLARS ($20,000,000) or (b) the aggregate
principal amount then outstanding of the Loans made by the Lender to the
Borrowers pursuant to that certain Unsecured Revolving Credit Agreement dated as
of July 22, 1998, 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 July 22, 2001,
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 at the times and at the rates provided in the
Credit Agreement.
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.
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. Subsequent waivers shall
be at the Agent's discretion. 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 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.
This 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
reference is hereby made for a
<PAGE> 214
statement of the terms and conditions under which this Note may be prepaid or
the Obligations accelerated or extended. This Note evidences Borrowings under
and has been issued by the Borrowers in accordance with the terms of the Credit
Agreement. 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
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 NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWERS
AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND THE
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON EACH BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION OF THE CREDIT AGREEMENT. EACH BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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 and every endorser and guarantor of this Note of
the obligation represented 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
and asserts to any extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of any collateral and to
the addition or release of any other party primarily or secondarily liable.
2
<PAGE> 215
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 TRUST
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: President
LEPERCQ CORPORATE INCOME FUND L.P.
By: LEX GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
--------------------------------
T. Wilson Eglin
Its: Vice President
LEPERCQ CORPORATE INCOME FUND II L.P.
By: LEX GP-1, Inc., its general
By: /s/ T. Wilson Eglin
--------------------------------
T. Wilson Eglin
Its: Vice President
UNION HILLS ASSOCIATES
By: Lepercq Corporate Income
Fund, L.P., its general partner
By: Lex GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
3
<PAGE> 216
LEX GP-1, INC.
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: Vice President
LEX LP-1, INC.
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: Vice President
PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP
By: Lepercq Corporate Income Fund II, L.P.,
Its general partner
By: LEX GP-1, Inc., its general partner
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
SAVANNAH WATERFRONT HOTEL, LLC.
By: Lepercq Corporate Income Fund, L.P.,
Its general partner
By: LEX GP-1, Inc.
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
4
<PAGE> 217
UNSECURED REVOLVING CREDIT NOTE
$20,000,000 Dated: July 22, 1998
FOR VALUE RECEIVED, the undersigned, LEXINGTON CORPORATE PROPERTIES TRUST;
LEPERCQ CORPORATE INCOME FUND L.P.; LEPERCQ CORPORATE INCOME FUND II L.P.; UNION
HILLS ASSOCIATES; LEX LP-I, INC.; LEX GP-1, INC.; Phoenix Hotel Associates
Limited Partnership; and Savannah Waterfront Hotel, LLC (collectively, the
"Borrowers" and individually a "Borrower") HEREBY PROMISE TO PAY, jointly and
severally, to the order of FIRST UNION NATIONAL BANK (the "Lender"), the lesser
of (a) TWENTY MILLION DOLLARS ($20,000,000) or (b) the aggregate principal
amount then outstanding of the Loans made by the Lender to the Borrowers
pursuant to that certain Unsecured Revolving Credit Agreement dated as of July
22, 1998, 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 July 22, 2001, 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 at the times and at the rates provided in the
Credit Agreement.
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.
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. Subsequent waivers shall
be at the Agent's discretion. 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 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.
This 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
reference is hereby made for a
<PAGE> 218
statement of the terms and conditions under which this Note may be prepaid or
the Obligations accelerated or extended. This Note evidences Borrowings under
and has been issued by the Borrowers in accordance with the terms of the Credit
Agreement. 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
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 NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWERS
AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND THE
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON EACH BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION OF THE CREDIT AGREEMENT. EACH BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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 and every endorser and guarantor of this Note of
the obligation represented 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
and asserts to any extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of any collateral and to
the addition or release of any other party primarily or secondarily liable.
2
<PAGE> 219
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 TRUST
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: President
LEPERCQ CORPORATE INCOME FUND L.P.
By: LEX GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
--------------------------------
T. Wilson Eglin
Its: Vice President
LEPERCQ CORPORATE INCOME FUND II L.P.
By: LEX GP-1, Inc., its general
By: /s/ T. Wilson Eglin
--------------------------------
T. Wilson Eglin
Its: Vice President
UNION HILLS ASSOCIATES
By: Lepercq Corporate Income
Fund, L.P., its general partner
By: Lex GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
3
<PAGE> 220
LEX GP-1, INC.
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: Vice President
LEX LP-1, INC.
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: Vice President
PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP
By: Lepercq Corporate Income Fund II, L.P.,
Its general partner
By: LEX GP-1, Inc., its general partner
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
SAVANNAH WATERFRONT HOTEL, LLC.
By: Lepercq Corporate Income Fund, L.P.,
Its general partner
By: LEX GP-1, Inc.
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
4
<PAGE> 221
UNSECURED REVOLVING CREDIT NOTE
$20,000,000 Dated: July 22, 1998
FOR VALUE RECEIVED, the undersigned, LEXINGTON CORPORATE PROPERTIES TRUST;
LEPERCQ CORPORATE INCOME FUND L.P.; LEPERCQ CORPORATE INCOME FUND II L.P.; UNION
HILLS ASSOCIATES; LEX LP-I, INC.; LEX GP-1, INC.; Phoenix Hotel Associates
Limited Partnership; and Savannah Waterfront Hotel, LLC (collectively, the
"Borrowers" and individually a "Borrower") HEREBY PROMISE TO PAY, jointly and
severally, to the order of CREDITANSTALT CORPORATE FINANCE, INC. (the "Lender"),
the lesser of (a) TWENTY MILLION DOLLARS ($20,000,000) or (b) the aggregate
principal amount then outstanding of the Loans made by the Lender to the
Borrowers pursuant to that certain Unsecured Revolving Credit Agreement dated as
of July 22, 1998, 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 July 22, 2001,
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 at the times and at the rates provided in the
Credit Agreement.
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.
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. Subsequent waivers shall
be at the Agent's discretion. 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 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.
This 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
reference is hereby made for a
<PAGE> 222
statement of the terms and conditions under which this Note may be prepaid or
the Obligations accelerated or extended. This Note evidences Borrowings under
and has been issued by the Borrowers in accordance with the terms of the Credit
Agreement. 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
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 NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWERS
AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND THE
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON EACH BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION OF THE CREDIT AGREEMENT. EACH BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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 and every endorser and guarantor of this Note of
the obligation represented 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
and asserts to any extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of any collateral and to
the addition or release of any other party primarily or secondarily liable.
2
<PAGE> 223
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 TRUST
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: President
LEPERCQ CORPORATE INCOME FUND L.P.
By: LEX GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
--------------------------------
T. Wilson Eglin
Its: Vice President
LEPERCQ CORPORATE INCOME FUND II L.P.
By: LEX GP-1, Inc., its general
By: /s/ T. Wilson Eglin
--------------------------------
T. Wilson Eglin
Its: Vice President
UNION HILLS ASSOCIATES
By: Lepercq Corporate Income
Fund, L.P., its general partner
By: Lex GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
3
<PAGE> 224
LEX GP-1, INC.
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: Vice President
LEX LP-1, INC.
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: Vice President
PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP
By: Lepercq Corporate Income Fund II, L.P.,
Its general partner
By: LEX GP-1, Inc., its general partner
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
SAVANNAH WATERFRONT HOTEL, LLC.
By: Lepercq Corporate Income Fund, L.P.,
Its general partner
By: LEX GP-1, Inc.
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
4
<PAGE> 225
UNSECURED REVOLVING CREDIT NOTE
$15,000,000 Dated: July 22, 1998
FOR VALUE RECEIVED, the undersigned, LEXINGTON CORPORATE PROPERTIES TRUST;
LEPERCQ CORPORATE INCOME FUND L.P.; LEPERCQ CORPORATE INCOME FUND II L.P.; UNION
HILLS ASSOCIATES; LEX LP-I, INC.; LEX GP-1, INC.; Phoenix Hotel Associates
Limited Partnership; and Savannah Waterfront Hotel, LLC (collectively, the
"Borrowers" and individually a "Borrower") HEREBY PROMISE TO PAY, jointly and
severally, to the order of CRESTAR BANK (the "Lender"), the lesser of (a)
FIFTEEN MILLION DOLLARS ($15,000,000) or (b) the aggregate principal amount then
outstanding of the Loans made by the Lender to the Borrowers pursuant to that
certain Unsecured Revolving Credit Agreement dated as of July 22, 1998, 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 July 22, 2001, 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 at the times and at the rates provided in the
Credit Agreement.
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.
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. Subsequent waivers shall
be at the Agent's discretion. 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 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.
This 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
reference is hereby made for a
<PAGE> 226
statement of the terms and conditions under which this Note may be prepaid or
the Obligations accelerated or extended. This Note evidences Borrowings under
and has been issued by the Borrowers in accordance with the terms of the Credit
Agreement. 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
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 NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWERS
AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND THE
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON EACH BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION OF THE CREDIT AGREEMENT. EACH BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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 and every endorser and guarantor of this Note of
the obligation represented 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
and asserts to any extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of any collateral and to
the addition or release of any other party primarily or secondarily liable.
2
<PAGE> 227
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 TRUST
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: President
LEPERCQ CORPORATE INCOME FUND L.P.
By: LEX GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
--------------------------------
T. Wilson Eglin
Its: Vice President
LEPERCQ CORPORATE INCOME FUND II L.P.
By: LEX GP-1, Inc., its general
By: /s/ T. Wilson Eglin
--------------------------------
T. Wilson Eglin
Its: Vice President
UNION HILLS ASSOCIATES
By: Lepercq Corporate Income
Fund, L.P., its general partner
By: Lex GP-1, Inc. its general partner
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
3
<PAGE> 228
LEX GP-1, INC.
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: Vice President
LEX LP-1, INC.
By: /s/ T. Wilson Eglin
------------------------------------
T. Wilson Eglin
Its: Vice President
PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP
By: Lepercq Corporate Income Fund II, L.P.,
Its general partner
By: LEX GP-1, Inc., its general partner
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
SAVANNAH WATERFRONT HOTEL, LLC.
By: Lepercq Corporate Income Fund, L.P.,
Its general partner
By: LEX GP-1, Inc.
By: /s/ T. Wilson Eglin
----------------------------
T. Wilson Eglin
Its: Vice President
4
<PAGE> 1
Exhibit 23
Accountants' Consent
The Board of Trustees
Lexington Corporate Properties Trust:
We consent to incorporation by reference in the registration statements (Nos.
333-49351, 333-57853, 333-70217) on Form S-3 of Lexington Corporate Properties
Trust of our report dated January 25, 1999, relating to the consolidated
balance sheets of Lexington Corporate Properties Trust and subsidiaries as of
December 31, 1998 and 1997, and the related consolidated statements of income,
changes in shareholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1998, and the related schedule, which
report appears in the December 31, 1998 annual report on Form 10-K of Lexington
Corporate Properties Trust.
KPMG LLP
New York, New York
March 3, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1998 AND THE
CONSOLIDATED BALANCE SHEET AS OF DECEMBER 31, 1998 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH ANNUAL REPORT ON FORM 10-K, DOLLARS IN THOUSANDS,
EXCEPT PER SHARE DATA.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<EXCHANGE-RATE> 1
<CASH> 11,084
<SECURITIES> 0
<RECEIVABLES> 12,436
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 675,793
<DEPRECIATION> 66,076
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24,369
0
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<EPS-PRIMARY> 0.79
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</TABLE>
