SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 4, 2004
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ONE LIBERTY PROPERTIES, INC.
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(Exact name of Registrant as specified in charter)
Maryland 001-09279 13-3147497
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(State or other (Commission file No.) (IRS Employer
jurisdiction of I.D. No.)
incorporation)
60 Cutter Mill Road, Suite 303, Great Neck, New York 11021
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code 516-466-3100
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Item 5. Other Events and Required FD Disclosure.
On June 4, 2004, Registrant consummated an amendment to its existing
$30 million revolving credit facility to add two new lenders and to bring the
total amount of the facility up to $62.5 million. The lenders are Valley
National Bank, Merchants Bank Division, Bank Leumi USA, Israel Discount Bank of
New York and Manufacturers and Traders Trust Company. The material terms of the
transaction are as follows:
Lender: Valley National Bank, Merchants Bank Division, Bank Leumi USA,
Israel Discount Bank of New York and Manufacturers and Traders
Trust Company.
Guarantors: All subsidiaries of Registrant whose properties are not
encumbered by mortgage debt guaranteed the credit facility.
Subsidiaries of Registrant formed post-closing are required to
become guarantors so long as their properties are not
encumbered by mortgage debt. Subject to certain conditions, a
guarantor may be released from its guaranty when it mortgages
its property.
Amount: $62,500,000. As of the date hereof, the Registrant has not
drawn down on the credit facility.
Loan Type: The credit facility is a revolving facility (i.e. funds can
be borrowed, repaid and borrowed again).
Use of
Proceeds: (1) Acquisition or financing of commercial real estate, and
(2) repayment of mortgage debt.
Maturity Date: March 31, 2007.
Rate: At option of the Company, either at LIBOR plus 2.50% or at
the Prime Rate of the Lenders.
Fees: There was a total of $575,000 in commitment fees paid in
connection with the credit facility. Registrant also paid
the out of pocket expenses of the Lender in connection with
the transaction (including legal fees).
In addition, there is an "unused fee" payable monthly, equal
to .25% per annum of the difference between the loan balance
and the maximum loan amount of $62,500,000.
Accounts: Borrower and affiliates are to maintain balances with Lender
in qualifying accounts of at least 10% of outstanding
balance due under credit facility.
Financial
Covenants: The Loan Agreement contains various financial and other
covenants and restrictions. The most significant are that
(i) Total Secured Debt (principally mortgage debt) to Total
Secured Value (essentially the value of Registrant's or
its subsidiaries' properties as calculated by formulas set
forth in the new credit facility which are encumbered by
mortgage debt) shall not exceed .70 to 1.00; (ii) Registrant
may not have more than $90 million of Investment in
Venture Interests (joint ventures and other strategic
alliances); (iii) Total Debt to Total Value shall not exceed
.70 to 1.00; (iv) Total Adjusted Net Operating Income to Debt
Service shall not be less than 1.65 to 1.00; (v) Registrant
and its Subsidiaries must own at least six (6) properties
which are not encumbered by a mortgage and which have a Total
Unsecured Value of at least $15 million; (vi) Registrant must
maintain a Net Worth at least equal to $135 million; (vii)
total outstanding Loans to unsecured value shall not exceed
2.00:1; and (viii) the ratio of EBIT to Fixed Charges must be
at least 1.35:1. Capitalized terms are specifically defined
in Restated Loan Agreement.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements - none.
(b) Pro Forma Financial Information - not applicable.
(c) Exhibits - Amended and Restated Loan Agreement dated as of June 4,
2004 between One Liberty Properties, Inc. and certain subsidiaries and
Valley National Bank, Merchants Bank Division, Bank Leumi USA, Israel
Discount Bank of New York and Manufacturers and Traders Trust Company.
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned officer thereunto duly authorized.
ONE LIBERTY PROPERTIES, INC.
Date: June 4, 2004 By: /s/ Simeon Brinberg
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Simeon Brinberg
Senior Vice President
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT made as of the 4th day of
June, 2004 by ONE LIBERTY PROPERTIES, INC., a Maryland corporation, having its
principal place of business at 60 Cutter Mill Road, Suite 303, Great Neck, New
York 11021 (the "Borrower") the Guarantors set forth on Schedule 1.01, VALLEY
NATIONAL BANK, Merchants Bank Division, with an address at 275 Madison Avenue,
New York, New York 10016 ("Merchants") and the lending institutions listed on
Schedule 1:
DEFINITIONS AND ACCOUNTING TERMS
Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Adjusted LIBOR Rate" means for any LIBOR Interest Period applicable to any
LIBOR Rate Loan, the rate per annum as determined on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for deposits, for a
period of time comparable to such LIBOR Interest Period, in U.S. Dollars as it
appears on the Dow Jones Telerate Service page 3750 (or such other pages as may
replace page 3750 on that service or such other service as may by nominated by
the BBA for the purpose of displaying BBA Interest Settlement Rates) as of 11:00
a.m. London time on the day that is two (2) Business Days prior to the beginning
of such LIBOR Interest Period; provided, however, if the rate described above
does not so appear on any applicable interest determination date, the Adjusted
LIBOR Rate shall be the rate for deposits in dollars for a period substantially
equal to the interest period on the Reuters Page LIBO (or such other page as may
replace the LIBO Page on that service for the purpose of displaying such rates)
as of 11:00 a.m. (London time) on the day that is two (2) Business Days prior to
the beginning of such LIBOR Interest Period.
If both the Telerate and Reuters system are unavailable, then the rate
for that date will be determined on the basis of the offered rates for deposits
in U.S. dollars for a period of time comparable to such LIBOR Interest Period
which are offered by four major banks in the London interbank market at
approximately 11:00 a.m. London time, on the day that is two (2) Business Days
prior to the beginning of such LIBOR Interest Period preceding the first day of
such LIBOR Rate Loan as selected by Lender. The principal London office of each
of the four major London banks will be requested to provide a quotation of its
U.S. dollar deposit offered rate. If at least two such quotations are provided,
the rate for that date will be the arithmetic mean of all of the quotations. If
fewer than two quotations are provided as requested, the rate for that date will
be determined on the basis of the rates quoted for loans in U.S. dollars to
leading European banks for a period of time comparable to such LIBOR Rate Loan
offered by major banks in New York City at approximately 11:00 a.m. New York
City time, on the day that is two London Business Days preceding the first day
of such LIBOR Rate Loan. In the event that Lender is unable to obtain any such
quotation as provided above, it will be deemed that the Adjusted LIBOR Rate
pursuant to a LIBOR Rate Loan cannot be determined. In the event that the Board
of Governors of the Federal Reserve system shall impose a Reserve Percentage
with respect to LIBOR deposits of Lender, then for any period during which such
Reserve Percentage shall apply, the Adjusted LIBOR Rate shall be equal to the
amount determined above divided by an amount equal to 1 minus the Reserve
Percentage.
"Adjusted Net Operating Income" means the base rent of all properties
subject to the covenant being tested less operating expenses and an assumed
three (3%) percent management fee allowance.
"Affiliate" means, as to any Person: (i) a Person which directly or
indirectly controls, or is controlled by, or is under common control with, such
Person; (ii) a Person which directly or indirectly beneficially owns or holds
five (5%) percent or more of any class of voting stock of, or five (5%) percent
or more of the equity interest in, such Person; or (iii) a Person five (5%)
percent or more of the voting stock of which, or five (5%) percent or more of
the equity interest of which, is directly or indirectly beneficially owned or
held by such Person. The term "control" means the possession, directly or
indirectly, of the power to direct, or cause the direction of, the management
and policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise. For the purposes of calculating the Required Balances
required in 0 hereof, executive officers of the Borrower and Persons controlled
by such executive officers shall be considered Affiliates.
"Agreement" means this Loan Agreement, as amended, supplemented or
modified from time to time.
"Applicable Margin" means the following percentage points with respect
to the Floating Rate or Adjusted LIBOR Rate, as applicable.
LIBOR Rate Loan Floating Rate Loan
Applicable Margin Applicable Margin
2.50% 0%
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"Board of Governors" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrowing Notice" shall have the meaning set forth in 0 of the
Agreement.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and in the case of LIBOR Rate Loans,
also a day which is a London Business Day.
"Capital Lease" means a lease which has been or should be, in
accordance with GAAP, capitalized on the books of the lessee.
"Collateral" means all property which is subject or is to be subject to
the security interest granted by the Pledge Agreement(s).
"Commitment" means the amount set forth on Schedule 1 with respect to
each Lender's obligation to make Revolving Credit Loans to the Borrower pursuant
to the terms and subject to the conditions of this Agreement.
"Commitment Percentage" means with respect to each Lender, the
percentage set forth on Schedule 1 as such Lender's percentage of the aggregate
Commitments of all of the Lenders.
"Consolidated EBIT" means the Consolidated Net Income (or Deficit) of
the Borrower and its Subsidiaries for any period, after all expenses and other
proper charges but before payment or provision for any income taxes or interest
expense for such period, determined in accordance with GAAP.
"Consolidated Net Income (or Deficit)" means the consolidated net
income (or deficit) of the Borrower and its Subsidiaries, after deduction of all
expenses, taxes, and other proper charges, determined in accordance with GAAP.
"Consolidated Total Interest Expense" means for any period, the
aggregate amount of interest required to be paid or accrued by the Borrower and
its Subsidiaries during such period on all Debt of the Borrower and its
Subsidiaries outstanding during all or any part of such period, whether such
interest was or is required to be reflected as an item of expense or
capitalized, including commitment fees, agency fees, facility fees, balance
deficiency fees and similar fees or expenses in connection with the borrowing of
money.
"Corporate Guarantor" or "Corporate Guarantors" means each of, or all
of, as the context requires, those Corporate Guarantors, if any, set forth on
Schedule 1.01.
"Credit Period" shall have the meaning set forth in 0hereof.
"Debt" means, as to any Person: (i) all indebtedness or liability of
such Person for borrowed money; (ii) all indebtedness of such Person for the
deferred purchase price of property or services (including trade obligations);
(iii) all obligations of such Person as a lessee under Capital Leases; (iv) all
current liabilities of such Person in respect of unfunded vested benefits under
any Plan; (v) all obligations of such Person under letters of credit issued for
the account of such Person; (vi) all obligations of such Person arising under
acceptance facilities; (vii) all guaranties, endorsements (other than for
collection or deposit in the ordinary course of business) and other contingent
obligations to purchase, to provide funds for payment, to supply funds to invest
in any other Person, or otherwise to assure a creditor against loss; (viii) all
obligations secured by any Lien on property owned by such Person whether or not
the obligations have been assumed; (ix) liabilities of such Person under
interest rate protection and similar agreements; (x) liabilities of such Person
under any preferred stock or other preferred equity instrument which, at the
option of the holder or upon the occurrence of one or more events, is redeemable
by such holder, or which, at the option of such holder is convertible into Debt;
(xi) indebtedness of any partnership of which such Person is a general partner;
and (xii) all other liabilities recorded as such, or which should be recorded as
such, on such Person's financial statements in accordance with GAAP.
"Debt Service" means all scheduled principal amortization and all
scheduled interest payments due within twelve (12) calendar months from any
calculated period that become due and payable pursuant to any agreement or
instrument to which the Borrower, Guarantor or any of its Subsidiaries is a
party, but excluding from the calculation therefrom, (i) the amount of any
principal payment due under this Agreement at the Maturity Date and (ii) the
amount by which any principal payment due at the maturity date of any other
agreement exceeds the regularly scheduled payment of principal due thereunder.
"Default" means any of the events specified in 0 of this Agreement,
whether or not any requirement for notice or lapse of time or any other
condition has been satisfied.
"Default Rate" means in respect of any Loans not paid when due (whether
at stated maturity, by acceleration or otherwise), a rate of interest per annum
during the period commencing on the due date thereof until such Loans are paid
in full equal to (a) in respect of the principal amount of Floating Rate Loans,
3% in excess of the Prime Rate as in effect from time to time plus the
Applicable Margin, and (b) in respect of the principal amount of LIBOR Rate
Loans, 3% in excess of the Adjusted LIBOR Rate in effect thereon at the time of
such default plus the Applicable Margin until the end of the then current LIBOR
Interest Period therefor and, thereafter, 3% in excess of the Prime Rate as in
effect from time to time plus the Applicable Margin; and in respect of other
amounts payable by any Borrower hereunder (including interest) not paid when due
(whether at stated maturity, by acceleration or otherwise), a rate per annum
during the period commencing on the due date until such other amounts are paid
in full equal to 3% in excess of the Prime Rate as in effect from time to time
plus the Applicable Margin.
"Dividends" means, with respect to any Person, (i) any dividend
(whether payable in cash, stock, other equity or debt instrument or in assets),
(ii) the purchase, redemption, retirement or other acquisition for value of any
of such Person's capital stock now or hereafter outstanding, (iii) the making of
any distribution of assets to such Person's stockholders as such, whether in
cash, assets, or in obligations of such Person, (iv) the allocation or other
setting apart of any sum for the payment of any dividend or distribution on, or
for the purchase, redemption or retirement of any shares of such Person's
capital stock or (v) the making of any other distribution by reduction of
capital or otherwise in respect of any share of such Person's capital stock.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Encumbered Property" or "Encumbered Properties" shall mean a Property
or Properties encumbered by a security interest, mortgage or any other Lien upon
or charge against or interest in the property to secure payment of a debt or
performance of an obligation.
"Equity Interests" means all securities, shares, units, options,
warrants, interests, participations, or other equivalents (regardless of how
designated) of or in a corporation, partnership, limited liability company, or
similar entity, whether voting or nonvoting, certificated or uncertificated,
including general partner partnership interests, limited partner partnership
interests, common stock, preferred stock, or any other "equity security" (as
such term is defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, the regulations promulgated thereunder and the
published interpretations thereof as in effect from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) which together with any other Person would be treated, with such
Person, as a single employer under Section 4001 of ERISA.
"Event of Default" means any of the events specified in 0 of this
Agreement, provided that any requirement for notice or lapse of time or any
other condition has been satisfied.
"Fixed Charges" means, for any period of time, (1) Consolidated Total
Interest Expense plus (2) Preferred Dividend Expense and regularly scheduled
principal amortization due within twelve (12) calendar months from any
calculated period that becomes due and payable pursuant to any agreement or
instrument to which the Borrower, Guarantor or any of its Subsidiaries is a
party, but excluding from the calculation therefrom, (i) the amount of any
principal payment due under this Agreement at the Maturity Date and (ii) the
amount by which any principal payment due at the maturity date of any other
agreement exceeds the regularly scheduled payment of principal due thereunder.
"Floating Rate" means a rate of interest equal to the Prime Rate plus
the Applicable Margin.
"Floating Rate Loans" mean collectively, all Loans bearing interest at
the Floating Rate.
"GAAP" means Generally Accepted Accounting Principles.
"Generally Accepted Accounting Principles" means those generally
accepted accounting principles and practices which are recognized as such by the
American Institute of Certified Public Accountants acting through the Financial
Accounting Standards Board ("FASB") or through other appropriate boards or
committees thereof and which are consistently applied for all periods so as to
properly reflect the financial condition, operations and cash flows of a Person,
except that any accounting principle or practice required to be changed by the
FASB (or other appropriate board or committee of the FASB) in order to continue
as a generally accepted accounting principle or practice may be so changed. Any
dispute or disagreement between the Borrower and the Lender relating to the
determination of Generally Accepted Accounting Principles shall, in the absence
of manifest error, be conclusively resolved for all purposes hereof by the
written opinion with respect thereto, delivered to the Lender, of the
independent accountants selected by the Borrower and approved by the Lender for
the purpose of auditing the periodic financial statements of the Borrower.
"General Partnership Guarantor" or "General Partnership Guarantors"
means each of, or all of, as the context requires, those General Partnership
Guarantors, if any, set forth on Schedule 1.01.
"Guarantor" or "Guarantors" means each of, or all of, as the context
requires, those Corporate Guarantors, Limited Liability Company Guarantors,
General Partnership Guarantors and Limited Partnership Guarantors set forth on
Schedule 1.01, and any other Person which is required to guarantee the
obligations of the Borrower in accordance with 0 of this Agreement.
"Guaranty" or "Guaranties" means a guaranty or guaranties required to
be executed and delivered by a Guarantor or Guarantors pursuant to 0 and 0 of
this Agreement.
"Hazardous Materials" includes, without limit, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances, or related materials defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Section 1801 et seq.), the Resource Conservation and Recovery
Act, as amended (42 U.S.C. Sections 6901 et. seq.), and in the regulations
adopted and publications or interpretations promulgated pursuant thereto, or any
other federal, state or local environmental law, ordinance, rule or regulation.
"Institutional Lender" is any bank, savings bank, savings and loan
association, trust company, credit union, insurance company or finance company
nationally recognized such as General Motors Acceptance Corporation and General
Electric Credit Corporation.
"Intercreditor and Payment Sharing Agreement" means the agreement among
the Lenders with respect to the Lenders' respective rights in the Collateral and
collections from the Borrower and Guarantors.
"Interest Payment Date" means the first Business Day of each month.
"Investment" means any stock, evidence of Debt or other security of any
Person, any loan, advance, contribution of capital, extension of credit or
commitment therefor, including without limitation the guaranty of loans made to
others (except for current trade and customer accounts receivable for services
rendered in the ordinary course of business and payable in accordance with
customary trade terms in the ordinary course of business and except for limited
guaranties executed in connection with non-recourse mortgage financing) and (i)
any purchase of any security of another Person or (ii) any business or
undertaking of any Person or any commitment or option to make any such purchase,
or any other investment.
"Lender" means each of, or as the context requires, all the Lenders
set forth on Schedule 1 in proportion to their Pro Rata Share.
"LIBOR Based Rate" means a rate of interest on the Loans equal to the
Adjusted LIBOR Rate plus the Applicable Margin.
"LIBOR Interest Period" means a period of one, two or three months
duration during which the LIBOR Based Rate is applicable.
"LIBOR Rate Loans" means collectively, all Loans bearing interest at
the LIBOR Based Rate.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance (other than utility
easements, reciprocal easement agreements, party-wall agreements and similar
items in the ordinary course of business), lien (statutory or other), or
preference, priority, or other security agreement or preferential arrangement,
charge, or encumbrance of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction to evidence any of the
foregoing.
"Limited Liability Company Guarantor" or "Limited Liability Company
Guarantors" means each of, or all of, as the context requires, those Limited
Liability Company Guarantors, if any, set forth on Schedule 1.01.
"Limited Partnership Guarantor" or "Limited Partnership Guarantors"
means each of, or all of, as the context requires, those Limited Partnership
Guarantors, if any, as set forth on Schedule 1.01.
"Loan" or Loans" means one or more, as the context requires, of the
Revolving Credit Loans.
"Loan Documents" means this Agreement, the Note, the Guaranties, the
Pledge Agreements and any other document executed or delivered pursuant to this
Agreement.
"London Business Day" means any day on which commercial banks are open
for international business in London.
"Material Adverse Change" means, as to any Person, (i) a material
adverse change in the financial condition, business, operations, properties,
prospects or results of operations of such Person or (ii) any event or
occurrence which could have a material adverse effect on the ability of such
Person to perform its obligations under the Loan Documents.
"Maturity Date" shall have the meaning assigned to such term in 0 of
this Agreement.
"Multiemployer Plan" means a Plan described in Section 4001(a)(3) of
ERISA which covers employees of the Borrower or any ERISA Affiliate.
"Net Worth" shall mean the amount by which all the assets of the
Borrower, as determined in accordance with GAAP, at any given time exceed the
liabilities.
"New Encumbered Properties" means Encumbered Properties acquired by the
Borrower, a Guarantor or a subsidiary of the Borrower or a Guarantor that they
have owned for less than one year.
"New Unencumbered Properties" means unencumbered properties acquired by
the Borrower, a Guarantor or a Subsidiary of the Borrower or a Guarantor that
they have owned for less than one year.
"Note" means each Revolving Credit Note.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Investments" means: (i) direct obligations of the United
States of America or any governmental agency thereof, or obligations guaranteed
by the United States of America, provided that such obligations mature within
one year from the date of acquisition thereof; (ii) time certificates of deposit
having a maturity of one year or less issued by any commercial bank organized
and existing under the laws of the United States or any state thereof and having
aggregate capital and surplus in excess of $1,000,000,000.00 other than such
time certificates of deposit at the Lender; (iii) money market mutual funds
having assets in excess of $2,500,000,000; (iv) commercial paper rated not less
than P-1 or A-1 or their equivalent by Moody's Investor Services, Inc. or
Standard & Poor's Corporation, respectively; (v) tax exempt securities rated
Prime 2 or better by Moody's Investor Services, Inc. or A-1 or better by
Standard & Poor's Corporation; (vi) the fee or leasehold interest in (or a
mortgage/deed of trust encumbering) retail, office, industrial, multi-family
residential and other commercial real estate located in the 48 contiguous United
States; (vii) investments by the Borrower in its Subsidiaries, (viii)
investments in stock of real estate investment trusts listed on a nationally
recognized stock exchange in an aggregate amount not exceeding $10,000,000.00,
(ix) investments in an aggregate amount not exceeding $90,000,000.00 in Venture
Interests in persons owning Properties provided however, that Borrower or
Subsidiary shall have management authority, equivalent to a manager of a limited
liability company, in the persons owning the Properties, and (x) time
certificates of deposit issued by the Lender.
"Person" means an individual, partnership, limited liability company,
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a federal, state
or local government, or a political subdivision thereof, or any agency of such
government or subdivision.
"Plan" means any employee benefit plan established, maintained, or to
which contributions have been made by, the Borrower or any ERISA Affiliate.
"Pledge Agreement" or "Pledge Agreements" means one or more of the
security agreements to be executed and delivered pursuant to 0 and Section 0 of
this Agreement.
"Preferred Dividend Expense" means , for any period, the aggregate of
all distributions made on preferred stock or other preferred beneficial interest
of Borrower, Guarantors and their respective Subsidiaries.
"Prime Rate" means the rate of interest stated by each Lender to be its
prime rate, reference rate or base rate in effect from time to time; each change
in said rate shall be effective as of the date of such change.
"Pro Rata Share" shall have the meaning set forth in the Intercreditor
and Payment Sharing Agreement as may be amended from time to time.
"Prohibited Transaction" means any transaction set forth in Section 406
of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended from
time to time.
"Property" or "Properties" mean commercial real property in which (i)
the Borrower, Guarantor and/or Subsidiary owns a fee or leasehold interest, or
(ii) the Borrower, Guarantor and /or Subsidiary owns a Venture Interest in a
Person that owns a fee or leasehold interest, or (iii) the Borrower, Guarantor
and/or Subsidiary owns a Venture Interest in a Person that owns a fee or
leasehold interest.
"Real Estate Acquisition Information" means copies and abstracts of any
and all information relating to any of the Properties including but not limited
to appraisals, financial information, rent rolls, lease abstracts and any such
other information as requested by the Lender in its sole and absolute discretion
and in the possession of Borrower, Guarantor and/or Subsidiary.
"Regulation D" means Regulation D of the Board of Governors, as the
same may be amended and in effect from time to time.
"Regulation T" means Regulation T of the Board of Governors, as the
same may be amended and in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors, as the
same may be amended and in effect from time to time.
"Regulation X" means Regulation X of the Board of Governors, as the
same may be amended and in effect from time to time.
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA.
"Reserve" means for any day, that reserve (expressed as a decimal)
which is in effect (whether or not actually incurred) with respect to Lender on
such day, as prescribed by the Board of Governors of the Federal Reserve System
(or any successor or any other banking authority to which Lender is subject
including any board or governmental or administrative agency of the United
States or any other jurisdiction to which Lender is subject), for determining
the maximum reserve requirement (including without limitation any basic,
supplemental, marginal or emergency reserves) for Eurocurrency liabilities as
defined in Regulation D.
"Reserve Percentage" means for Lender on any day, that percentage
(expressed as a decimal) which is in effect on such day, prescribed by the Board
of Governors of the Federal Reserve System (or any successor or any other
banking authority to which Lender is subject, including any board or
governmental or administrative agency of the United States or any other
jurisdiction to which Lender is subject) for determining the maximum reserve
requirement (including without limitation any basic, supplemental, marginal or
emergency reserves) for "Eurocurrency liabilities" as defined in Regulation D,
in each case used to fund a LIBOR Rate Loan subject to an Adjusted LIBOR Rate.
The Adjusted LIBOR Rate shall be adjusted automatically on and as of the
effective day of any change in the Reserve Percentage.
"Revolving Credit Loan" or "Revolving Credit Loans" shall be deemed a
reference to Lenders' Revolving Credit Loans as defined in 0 of this Agreement.
"Revolving Credit Note" or "Revolving Credit Notes" shall be deemed a
reference to each Lenders' Revolving Credit Note as defined in 0 of this
Agreement.
"SEC" means The United States Securities and Exchange Commission.
"Subsidiary" means, as to any Person, any corporation, partnership,
limited liability company or joint venture whether now existing or hereafter
organized or acquired (i) in the case of a corporation, of which one hundred
percent (100%) of the securities having ordinary voting power for the election
of directors (other than securities having such power only by reason of the
happening of a contingency) are at the time owned by such Person and/or one or
more Subsidiaries of such Person or (ii) in the case of a partnership, limited
liability company or joint venture, of which one hundred percent (100%) of the
partnership, membership or other ownership interests are at the time owned by
such Person and/or one or more Subsidiaries of such Person.
"Total Debt" means Total Secured Debt plus Total Unsecured Debt.
----
"Total Secured Debt" means all Debt of the Borrower, the Guarantors and
their respective Subsidiaries attributable to their Encumbered Properties.
"Total Unsecured Debt" means all Debt of the Borrower, the Guarantors
and their respective Subsidiaries other than Total Secured Debt.
"Total Value" means Total Secured Value plus Total Unsecured Value.
----
"Total Secured Value" means the value of the Borrower's, Guarantors'
and their respective Subsidiaries' Encumbered Properties (other than New
Encumbered Properties), calculated by capitalizing the Adjusted Net Operating
Income thereof at a rate of 9.75%, plus the value of the Borrower's, Guarantors'
and their respective Subsidiaries' New Encumbered Properties, calculated at the
higher of (i) the capitalization of the Adjusted Net Operating Income thereof at
a rate of 9.75% or (ii) the purchase price thereof, provided however that such
Encumbered Property must be improved and have a positive cash flow.
"Total Unsecured Value" means the value of the Borrower's, Guarantors'
and their respective Subsidiaries' Unencumbered Properties (other than New
Unencumbered Properties), calculated by capitalizing the Adjusted Net Operating
Income thereof at a rate of 9.75%, plus the value of the Borrower's, Guarantors'
and their respective Subsidiaries' New Unencumbered Properties, calculated at
the higher of (i) the capitalization of the Adjusted Net Operating Income
thereof at a rate of 9.75% or (ii) the purchase price thereof, provided however
that such Unencumbered Property must be improved and have a positive cash flow.
"Unencumbered Properties" shall mean a Property or Properties
unencumbered by any security interest, mortgage or any other Lien upon or charge
against or interest in the Property to secure payment of a debt or performance
of an obligation.
"Unused Facility Fee" shall have the meaning set forth in 0 hereof.
"Venture Interest" means as to any Person, any corporation,
partnership, limited liability company or joint venture whether now existing or
hereafter organized or acquired (i) in the case of a corporation, of which less
than a majority but equal to or more than 25% of the securities having ordinary
voting power for the election of directors (other than securities having such
power only by reason of the happening of a contingency) are at the time owned by
such Person and/or one or more Subsidiaries of such Person or (ii) in the case
of a partnership, limited liability company or joint venture, of which less than
a majority but equal to or more than 25% of the partnership, membership or other
ownership interests are at the time owned by such Persona and/or one or more
Subsidiaries of such Person.
"Written-Off Subsidiary" shall mean a Subsidiary (other than a
Subsidiary which is also a Guarantor) in which the assets of such Subsidiary
have been written down to a net value of $0 on the consolidated books of the
Borrower.
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 means "to and
including".
Accounting Terms. Except as otherwise herein specifically provided,
each accounting term used herein shall have the meaning given to it under GAAP.
Construction.
All references in this Agreement to "Sections" or
"sub-sections" shall be deemed, unless otherwise noted, to be references to the
Sections or sub-sections of this Agreement.
All references in this Agreement to an "Exhibit" or "Exhibits"
or to a "Schedule" or "Schedules" shall be deemed, unless otherwise noted, to be
references to the Exhibits and Schedules annexed to this Agreement.
All references to a Subsidiary shall be deemed, unless
otherwise noted, to be references to a Subsidiary of the Borrower or a
Subsidiary of a Guarantor.
Calculation of Financial Requirements. All calculations of Financial
Requirements set forth in 0 of this Agreement when referable to a Property or
Properties of a Venture Interest shall be computed by applying the percentage
interest owned by the Borrower, Guarantor and/or Subsidiary to the applicable
Accounting Term, Financial Requirement or other term, to be computed.
AMOUNT AND TERMS OF THE LOANS
Revolving Credit Loans. Each Lender agrees, on and after the date of
this Agreement, on the terms and conditions of this Agreement and in reliance
upon the representations and warranties set forth in this Agreement, to lend to
the Borrower, severally and not jointly, and prior to the Maturity Date (the
"Credit Period") such amounts as the Borrower may request from time to time
(individually, a "Revolving Credit Loan" or collectively, the "Revolving Credit
Loans"), which amounts may be borrowed, repaid and reborrowed, provided,
however, that the aggregate amount of such Revolving Credit Loans outstanding at
any one time shall not exceed the Lenders' Commitment as it may be reduced
pursuant to 0 hereof. Borrower may borrow Revolving Credit Loans by means of
Floating Rate Loans and LIBOR Rate Loans. The Revolving Credit Loans shall be
made pro rata in accordance with each Lenders' Commitment Percentage.
Revolving Credit Note. The Revolving Credit Loans shall be evidenced by
separate promissory notes of the Borrower in substantially the form of Exhibit A
hereto (each a "Revolving Credit Note") dated the date hereof and completed with
appropriate insertions. One Revolving Credit Note shall be payable to the order
of each Lender in a principal amount equal to such Lender's Commitment and shall
be entitled to the benefits of and shall be subject to the provisions of this
Agreement. At the time of the making of each Revolving Credit Loan and at the
time of each payment of principal thereon, the holder of each Revolving Credit
Note is hereby authorized by the Borrower to make a notation on the schedule
annexed to the Revolving Credit Note of the date and amount of the Revolving
Credit Loan or payment, as the case may be. Failure to make a notation with
respect to any Revolving Credit Loan shall not limit or otherwise affect the
obligation of the Borrower hereunder or under each Revolving Credit Note with
respect to such Revolving Credit Loan, and any payment of principal on the
Revolving Credit Note by the Borrower shall not be affected by the failure to
make a notation thereof on said schedule.
Interest.
Rate Options. Except as provided below, all Loans shall bear
-------------
interest at the applicable Floating Rate. At the time of each Loan, and
thereafter from time to time, Borrower shall have the right, subject to the
terms and conditions of this Agreement, and provided no Event of Default has
occurred and is continuing, to designate to Lender in a writing that all or a
portion of the Loans shall bear interest at either the (1) LIBOR Based Rate or
(2) Floating Rate. Interest on each portion thereof shall accrue and be paid at
the time and rate applicable to the respective option selected by Borrower or
otherwise governing under the terms of this Agreement. If for any reason the
LIBOR Based Rate option is unavailable, the Floating Rate shall apply. The rate
of interest on Floating Rate Loans shall increase or decrease by an amount equal
to any increase or decrease in the Prime Rate effective as of the opening of
business on the day that any such change in the Prime Rate occurs.
Requests. Provided no Event of Default has occurred and is
---------
continuing, and subject to the provisions of this 0, if Borrower desires to have
the LIBOR Based Rate apply to all or a portion of the Loans, Borrower shall give
Lender a written irrevocable request no later than 12:00 Noon Eastern time two
(2) Business Days prior to the requested borrowing date specifying (i) the date
the LIBOR Based Rate shall apply (which shall be a Business Day), (ii) the LIBOR
Interest Period, and (iii) the amount to be subject to the LIBOR Based Rate
provided that such amount shall be an integral multiple of $100,000. In no event
may Borrower have outstanding at any time more than five different tranches of
LIBOR Rate Loans.
LIBOR Interest Periods. LIBOR Rate Loans shall be selected by
-----------------------
Borrower for a LIBOR Interest Period during which the LIBOR Based Rate is
applicable; provided, however, that (x) if the LIBOR Interest Period would
otherwise end on a day which shall not be a Business Day, such LIBOR Interest
Period shall be extended to the next preceding or succeeding Business Day as is
customary in the market to which such LIBOR Rate Loan relates. All accrued and
unpaid interest on a LIBOR Rate Loan shall be paid at the end of the applicable
LIBOR Interest Period in accordance with 0 Notwithstanding anything herein
contained to the contrary, no LIBOR Interest Period with respect to any of the
Revolving Credit Loans may end after the Maturity Date. Subject to all of the
terms and conditions applicable to a request to convert all or a portion of the
Loans to a LIBOR Rate Loan, Borrower may extend a LIBOR Rate Loan as of the last
day of the LIBOR Interest Period to a new LIBOR Rate Loan. If Borrower fails to
notify Lender of the LIBOR Interest Period for a subsequent LIBOR Rate Loan at
least two (2) Business Days prior to the last day of the then current LIBOR
Interest Period of an outstanding LIBOR Rate Loan, then such outstanding LIBOR
Rate Loan shall, at the end of the applicable LIBOR Interest Period, accrue
interest at the Floating Rate.
Adjustments. The Adjusted LIBOR Rate may be automatically
------------
adjusted by Lender on a prospective basis to take into account the increased
costs of the Lender in making or maintaining LIBOR Rate Loans hereunder due to
changes in applicable law or regulation or the interpretation thereof occurring
subsequent to the commencement of the then applicable LIBOR Interest Period,
including but not limited to, changes in tax laws (except changes of general
applicability in corporate income tax laws) and changes in the reserve
requirements imposed by the Board of Governors of the Federal Reserve System (or
any successor or other applicable governing body), excluding the Reserve
Percentage and any Reserve which has resulted in a payment pursuant to 0 below,
that increase the cost to Lender of funding the LIBOR Rate Loan. Lender shall
promptly give Borrower notice of such a determination and adjustment, which
determination shall be prima facie evidence of the correctness of the fact and
the amount of such adjustment.
Unavailability. If Borrower shall have requested the rate
---------------
based on the Adjusted LIBOR Rate in accordance with this 0 and Lender shall have
reasonably determined, in good faith, that Eurodollar deposits equal to the
amount of the principal of the requested LIBOR Rate Loan and for the LIBOR
Interest Period specified are unavailable, or that the rate based on the
Adjusted LIBOR Rate will not adequately and fairly reflect the cost of the
Adjusted LIBOR Rate applicable to the specified LIBOR Interest Period, of making
or maintaining the principal amount of the requested LIBOR Rate Loan during the
LIBOR Interest Period specified, or that by reason of circumstances affecting
Eurodollar markets, adequate means do not exist for ascertaining the rate based
on the Adjusted LIBOR Rate applicable to the specified LIBOR Interest Period,
Lender shall promptly give notice of such determination to Borrower that the
rate based on the Adjusted LIBOR Rate is not available. A determination, in good
faith, by Lender hereunder shall, absent manifest error, be prima facie evidence
of the correctness of the fact and amount of such additional costs or
unavailability. Upon such a determination, (i) the obligation to convert to, or
maintain a LIBOR Rate Loan at the rate based on the Adjusted LIBOR Rate shall be
suspended until Lender, shall have notified Borrower that such conditions shall
have ceased to exist, and (ii) the portion of the Loans subject to the request
or requested conversion shall accrue interest at the Floating Rate.
Illegality. Notwithstanding anything to the contrary herein
-----------
contained, if any change in any law or regulation or in the interpretation
thereof after the date hereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for Lender to
make or maintain any LIBOR Rate Loan, then, by written notice to Borrower,
Lender may: (i) declare that LIBOR Rate Loans will not thereafter be made by
Lender hereunder, whereupon Borrower shall be prohibited from requesting LIBOR
Rate Loans from Lender hereunder unless such declaration is subsequently
withdrawn; and (ii) if unlawful to be so maintained, require that all
outstanding LIBOR Rate Loans made by it be converted to Floating Rate Loans, in
which event (x) all such LIBOR Rate Loans shall be automatically converted to
Floating Rate Loans as of the effective date of such notice as provided in the
sentence below and (y) all payments and prepayments of principal which would
otherwise have been applied to repay the converted LIBOR Rate Loans shall
instead be applied to repay the Floating Rate Loans resulting from the
conversion of such LIBOR Rate Loans. For purposes of this Paragraph 0, a notice
to Borrower by Lender pursuant to this paragraph shall be effective, if lawful,
on the last day of the then current LIBOR Interest Period; in all other cases,
such notice shall be effective on the day of receipt by Borrower.
Capital Adequacy. If, due to either (i) the introduction of or
-----------------
any change in or in the interpretation of any law or regulation after the date
hereof or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (where or not having the force of law)
issued after the date hereof (each a "Change of Law"), there shall be any
increase in the cost to Lender of making, funding, or maintaining Loans, then
Borrower shall, from time to time, upon Lender's demand, pay to Lender
additional amounts sufficient to compensate Lender for such increased cost. In
addition, if Lender determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) issued after the date hereof affects or
would affect the amount of capital required or expected to be maintained by
Lender or any corporation controlling Lender and that the amount of such capital
is increased by or based upon the existence of loans hereunder, then, upon
Lender's demand, Borrower shall immediately pay to Lender, from time to time as
specified by Lender, additional amounts sufficient to compensate Lender or such
corporation in the light of such circumstances to the extent that Lender
reasonably determines such increase in capital to be allocable to the existence
of loans hereunder. Notwithstanding anything to the contrary herein contained,
the Borrower shall not be required to compensate the Lender for any increased
costs or increased capital incurred more than ninety (90) days prior to the date
that the Lender notifies the Borrower of the Change in Law giving rise to such
increased costs or increased capital and of Lender's intention to claim
compensation therefor.
Conversion of Loans. Subject to the terms hereof, Borrower
--------------------
shall have the right to convert Floating Rate Loans into LIBOR Rate Loans and
LIBOR Rate Loans into Floating Rate Loans from time to time, provided that
Borrower shall give to Lender notice of each such conversion as provided in 0
and provided further that no conversion of LIBOR Rate Loans shall occur except
on the last day of the LIBOR Interest Period applicable thereto unless Borrower
has compensated Lender pursuant to 0 hereof.
Computation of Interest and Fees. Unless otherwise specifically set
forth in this Agreement, interest and all fees shall be computed on the actual
number of days elapsed over a year of 360 days.
Reimbursement of Expenses. If, at any time or times regardless of
whether or not an Event of Default then exists, any Lender incurs reasonable
out-of-pocket legal or accounting expenses or any other reasonable out-of-pocket
costs or expenses in connection with (a) the negotiation and preparation of this
Agreement or any of the other Loan Documents, and any amendment, modification,
replacement or termination of this Agreement or any of the other Loan Documents
that has been requested by Borrower and Lender or been executed by the Loan
Parties; (b) the administration of this Agreement or any of the other Loan
Documents and the transactions contemplated hereby and thereby, except for those
certain costs incurred in connection with disputes by and among the Lenders; (c)
any litigation, contest, dispute, suit, proceeding or action (whether instituted
by any Lender, Borrower or any other Person) in any way relating to this
Agreement or any of the other Loan Documents or Borrower's affairs (except to
the extent any such cost or expense arises from such Lender's gross negligence
or willful misconduct); or (iv) any attempt to enforce any rights of any Lender
against Borrower or any other Person which may be obligated to such Lender by
virtue of this Agreement or any of the other Loan Documents, then all such costs
and expenses shall be charged to Borrower. All amounts chargeable to Borrower
under this Section shall be payable promptly after demand by the Lender
therefore, which demand shall include a reasonably detailed invoice therefore,
and shall bear interest from the date 10 business days after such demand is made
until paid in full at the Floating Rate applicable to the Loans from time to
time.
Loan Requests. A request for a Loan shall be made, or shall be deemed
to be made, by Borrower in the following manner: Borrower shall give Lender
telephonic notice, to be promptly confirmed in writing on the form attached
hereto as Exhibit B, of each borrowing (or continuation with respect to a LIBOR
Rate Loan), each conversion and prepayment of a Loan and, in the case of the
borrowing or prepayment of, or conversion of a Loan into, a LIBOR Rate Loan, of
the duration of each LIBOR Interest Period applicable thereto (a "Borrowing
Notice"). Each Borrowing Notice shall be irrevocable and shall be effective only
if received by Lender no later than, in the case of the borrowing (or
continuation), prepayment or conversion of a Floating Rate Loan, 12:00 Noon New
York City time, on the date of borrowing (or continuation), prepayment or
conversion of such Floating Rate Loan or, in the case of the borrowing (or
continuation), prepayment or conversion of a LIBOR Rate Loan, 12:00 Noon New
York City time, on the date which is at least two (2) Business Days, prior to
the date of such borrowing (or continuation), prepayment or conversion of the
Loan designated in the Borrowing Notice. Each such Borrowing Notice shall
specify (a) the amount and type of Loan to be borrowed (or continued), converted
or prepaid and (b) the date of such borrowing (or continuation), conversion or
prepayment (which shall be a Business Day). Each such Borrowing Notice of the
duration of an LIBOR Interest Period shall specify the LIBOR Rate Loans to which
such LIBOR Interest Period is to relate.
Maturity; Maximum Revolving Credit Obligations; Prepayments.
All Revolving Credit Loans shall be due and payable, if not
required to be paid earlier pursuant to this Agreement, on March 31, 2007 (the
"Maturity Date").
At no time shall the aggregate principal amount of the Loans
outstanding exceed the amount of the Commitment. In the event that for any
reason, the aggregate outstanding principal amount of the Loans exceeds the
amount of the Commitment, Borrower shall immediately, after notice, prepay the
Loans in an amount sufficient to reduce the sum of the aggregate principal
amount of the Loans to an amount not greater than the amount of the Commitment.
Any such prepayment shall be made with interest accrued to the date of
prepayment and be subject to the indemnity agreement set forth in 00.
Borrower shall make a mandatory prepayment, subject to the
indemnity agreement set forth in 00, of the principal amount of the Loans
outstanding:
upon the sale by the Borrower or any Guarantor of any
Property for which the proceeds of the Revolving Credit Loans
were used to purchase or finance such Property equal to the
full net proceeds of such sale,
upon the refinance of any Property acquired by the
Borrower or any Guarantor after the date hereof for which the
proceeds of the Revolving Credit Loans were used equal to the
net proceeds of such refinance; and
upon the remortgaging by the Borrower or any
Guarantor of any Property for which the proceeds of the
Revolving Credit Loans were used to repay prior mortgages,
equal to the net proceeds of such remortgaging.
Subject to the delivery of a Borrowing Notice pursuant to 0
and to the indemnity agreement set forth in 00 hereof with respect to LIBOR Rate
Loans, but otherwise without premium or penalty, Borrower shall have the right
to prepay any Loan at any time and from time to time in whole or in part;
provided, however, that (x) any such prepayment (other than a prepayment
-------- -------
pursuant to 00) shall be in an amount not less than such amounts as provided in
00 hereof; and (y) any such prepayment of a Loan shall be made with interest
accrued on the principal amount being prepaid to the date of prepayment.
Except as set forth in 0and 0 hereof, and except as may be
otherwise expressly directed by Borrower provided no Event of Default exists or
is continuing, all payments and repayments made pursuant to the terms hereof
shall be applied first to Floating Rate Loans, and shall be applied to LIBOR
Rate Loans only to the extent any such payment exceeds the principal amount of
Floating Rate Loans outstanding at the time of such payment.
Except for borrowings which exhaust the full remaining amount
of the Commitment or prepayments pursuant to 00 or which result in the
prepayment of all Loans of a particular type, each borrowing and prepayment and
each conversion of a LIBOR Rate Loan shall be in a minimum amount of
$100,000.00, and each borrowing and prepayment of a Floating Rate Loan shall be
in a minimum amount of $50,000.00 and in increased integral multiples of
$10,000.00.
Indemnity; Yield Protection. Borrower hereby indemnifies
----------------------------
Lender against any loss (each a "Loss") or reasonable out-of-pocket expenses
which Lender may sustain or incur as a consequence of (a) the receipt or
recovery by Lender whether by voluntary prepayment, acceleration or otherwise,
of all or any part of a LIBOR Rate Loan other than on the last day of any LIBOR
Interest Period applicable to such Loan, (b) the conversion of a LIBOR Rate Loan
prior to the last day of any LIBOR Interest Period applicable to such LIBOR Rate
Loan, (c) the failure to borrow any LIBOR Rate Loan after agreement shall have
been reached with respect to the LIBOR Interest Period therefor, or (d) any
failure by Borrower to borrow a LIBOR Rate Loan on the date specified by
Borrower's written notice. The Borrower shall pay to Lender a yield maintenance
fee (the "yield maintenance fee") as payment in full in respect of each such
Loss, if any, computed as follows: The current rate for United States Treasury
securities (bills on a discounted basis shall be converted to a bond equivalent)
with a maturity date closest to the maturity date of the term chosen pursuant to
the LIBOR Interest Period as to which the prepayment is made, shall be
subtracted from the "Cost of Funds" component of the fixed rate in effect at the
time of prepayment. If the result is zero or a negative number, there shall be
no yield maintenance fee. If the result is a positive number, then the resulting
percentage shall be multiplied by the amount of the principal balance being
prepaid. The resulting amount shall be divided by 360 and multiplied by the
number of days remaining in the term chosen pursuant to the LIBOR Interest
Period as to which the prepayment is made. Said amount shall be reduced to
present value calculated by using the number of days remaining in the designated
term and using the above-referenced United States Treasury security rate and the
number of days remaining in the term chosen pursuant to the LIBOR Interest
Period as to which the prepayment is made. The resulting amount shall be the
yield maintenance fee due to Lender upon prepayment of the LIBOR Rate Loan.
"Cost of Funds" as used herein means with respect to any such LIBOR Rate Loan
the Adjusted LIBOR Rate applicable thereto. If by reason of an Event of Default
hereunder, Lender elects to declare the Loans to be immediately due and payable,
then any yield maintenance fee with respect to the Loans shall become due and
payable in the same manner as though Borrower had been granted and had exercised
a right of prepayment.
All prepayments by the Borrower hereunder shall be made pro
rata in accordance with each Lender's Commitment Percentage.
Payments.
All payments by the Borrower hereunder or under the Note shall
be made in Dollars in immediately available funds by wire transfer or intra-Bank
credit from accounts of the Borrower by 2:00 P.M. New York City time on the date
on which such payment shall be due. Interest on the Notes shall accrue from and
including the date of each Loan to but excluding the date on which such Loan is
paid in full.
Except as provided in the following sentence, accrued interest
on each Loan shall be payable in arrears (i) in the case of Floating Rate Loans,
monthly in arrears on the last Business Day of each month, (ii) in the case of
LIBOR Rate Loans, on the last day of the applicable LIBOR Interest Period
relating thereto, as applicable, and in each case until the maturity of such
Loan or the payment or prepayment thereof in full. Interest at the Default Rate
shall be payable from time to time on demand of Lender, if applicable.
Subject to 0 of this Agreement, all items of payment received
by Lender by 2:00 P.M. Eastern time, on any Business Day shall be deemed
received on that Business Day. All items of payment received after 2:00 P.M.
Eastern time, on any Business Day shall be deemed received on the following
Business Day. Until payment in full of all Obligations and termination of this
Agreement, Borrower irrevocably waives (except as otherwise expressly provided
for by Lender) the right to direct the application of any and all payments and
collections at any time or times hereafter received by Lender from or on behalf
of Borrower, and Borrower does hereby irrevocably agree that Lender shall have
the continuing exclusive right to apply and reapply any and all such payments
and collections received at any time or times hereafter by Lender or its agent
against the Obligations, in such manner as Lender may reasonably deem advisable,
notwithstanding any entry by Lender upon any of its books and records.
All payments by the Borrower hereunder shall be made pro rata
in accordance with each Lender's Commitment Percentage.
Required Balances. The Borrower and/or Guarantors and/or their
respective Affiliates shall maintain at all times collected deposit balances of
at least ten percent (10%) of the average outstanding annual principal balance
of the Note with each Lender (the "Required Balances"). In the event that the
Borrower and/or Guarantors and/or their respective Affiliates maintain the
collected demand deposit balances with each Lender in accordance with Schedule
0, the remainder of the Required Balances requirement may be met with money
market accounts and certificates of deposit (balances held in certificates of
deposit will be calculated at 50% of their face value and money market accounts
at 100% at their face value). In the event that the Borrower and/or the
Guarantors and/or their respective Affiliates fail to maintain such Required
Balances, as sole remedy for such failure, the Borrower shall pay to each Lender
a deficiency fee equal to four percent (4%) per annum of the difference between
the Required Balances and the actual balances maintained by the Borrower and/or
the Guarantors and/or their respective Affiliates, payable on each anniversary
of the date of this Agreement in arrears.
Use of Proceeds. The proceeds of the Revolving Credit Loans shall be
used to finance (i) the acquisition or financing of interests (including joint
venture interests) in commercial real estate by the Borrower and/or the
Guarantors, and/or a Subsidiary and (ii) the repayment of existing mortgage debt
on Properties owned by the Borrower and/or the Guarantors. No part of the
proceeds of any Loan may be used for any purpose that directly or indirectly
violates or is inconsistent with, the provisions of Regulations T, U or X.
Unused Facility Fee. The Borrower agrees to pay to each Lender from the
date of this Agreement and for so long as the Commitment remains outstanding, on
the first Business Day of each month an unused facility fee equal to one quarter
of one percent (0.25%) per annum (computed on the basis of the actual number of
days elapsed over 360 days) on the average daily unused amount of the Commitment
(the "Unused Facility Fee"), such Unused Facility Fee being payable for the
calendar month, or part thereof, preceding the payment date.
Reduction of Commitment. Upon at least three (3) Business Days' written
notice to Lender, the Borrower may irrevocably elect to have the unused
Commitment terminated in whole or reduced in part without penalty or premium
provided, however, that any such partial reduction shall be in a minimum amount
of $250,000.00 or whole multiples thereof. The Commitment, once terminated or
reduced, shall not be reinstated without the express written approval of the
Lender.
Authorization to Debit Borrower's Account. Each Lender is hereby
authorized to debit the Borrower's account maintained with such Lender for (i)
all scheduled payments of principal and/or interest under the Note, and (ii) the
Unused Facility Fee, deficiency fee, and all other fees and amounts due
hereunder; all such debits to be made on the days such payments are due in
accordance with the terms hereof.
Late Charges, Default Interest.
If the Borrower shall default in the payment of any principal
installment of or interest on any Loan or any other amount becoming due
hereunder, the Borrower shall pay a late payment charge equal to four (4%)
percent of such defaulted payment.
Upon the occurrence and during the continuation of an Event of
Default, the Borrower shall pay interest on all amounts owing under the Note and
this Agreement (after as well as before judgment) at the Default Rate.
Interest Adjustments. If the provisions of this Agreement or the Note
would at any time require payment by the Borrower to the Lender of any amount of
interest in excess of the maximum amount then permitted by applicable law, the
interest payments shall be reduced to the extent necessary so that the Lender
shall not receive interest in excess of such maximum amount. To the extent that,
pursuant to the foregoing sentence, the Lender shall receive interest payments
hereunder or under the Note in an amount less than the amount otherwise
provided, such deficit (hereinafter called the "Interest Deficit") will cumulate
and will be carried forward (without interest) until the termination of this
Agreement. Interest otherwise payable to the Lender hereunder or under the Note
for any subsequent period shall be increased by such maximum amount of the
Interest Deficit that may be so added without causing the Lender to receive
interest in excess of the maximum amount then permitted by applicable law.
Participations, Etc. Each Lender shall have the right at any time, with
or without notice to the Borrower, to sell, assign, transfer or negotiate all or
any part of the Note or the Commitment or grant participations therein to one or
more banks (foreign or domestic, including an affiliate of the Lender) having
sufficient capital to honor the Commitment, insurance companies or other
regulated financial institutions, pension funds or mutual funds. The Borrower
and each of the Guarantors agrees and consents to each Lender providing
financial and other information regarding its and their business and operations
to prospective purchasers or participants and further agree that to the extent
that any Lender should sell, assign, transfer or negotiate all or any part of
the Note or the Commitment, such Lender shall be forever released and discharged
from its obligations under the Note, the Commitment and this Agreement to the
extent same is sold, assigned, transferred or negotiated to any commercial bank,
insurance company or other regulated financial institution, pension fund or
mutual fund organized and existing under the laws of the United States or any
state thereof and having a net worth in excess of $1,000,000,000.00. Nothing
herein shall be read or construed as prohibiting or otherwise limiting the
ability or right of each Lender to pledge the Note to a Federal Reserve Bank.
CONDITIONS OF LENDING
Conditions Precedent to the Making of the Initial Revolving Credit
Loan. The obligation of each Lender to make the initial Revolving Credit Loan
contemplated by this Agreement is subject to the following conditions precedent,
all of which shall be performed or satisfied in a manner in form and substance
reasonably satisfactory to such Lender and its counsel:
The Lender shall have received the Lender's Revolving Credit
Note, duly executed by the Borrower.
The Lender shall have received certified (as of the date of
this Agreement) copies of the resolutions of the board of directors of the
Borrower authorizing the Loans and authorizing and approving this Agreement and
the other Loan Documents and the execution, delivery and performance thereof and
certified copies of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to this Agreement and such
other Loan Documents.
The Lender shall have received certified (as of the date of
this Agreement) copies of the resolutions of the boards of directors and the
shareholders of each of the Corporate Guarantors, authorizing and approving this
Agreement, their Guaranties and any other Loan Document applicable to the
Corporate Guarantors, and the execution, delivery and performance thereof and
certified copies of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to this Agreement, their
Guaranties and such other Loan Documents.
The Lender shall have received a certificate of the Secretary
(attested to by another officer) of the Borrower certifying: (i) the names and
true signatures of the officer or officers of the Borrower authorized to sign
this Agreement, the Note and the other Loan Documents to be delivered hereunder
on behalf of the Borrower; and (ii) a copy of the Borrower's by-laws as complete
and correct on the date of this Agreement.
The Lender shall have received a certificate of the Secretary
(attested to by another officer) of each of the Corporate Guarantors certifying
(i) the names and true signatures of the officer or officers of the Corporate
Guarantors authorized to sign this Agreement, their Guaranties and any other
Loan Documents to be delivered hereunder on behalf of the Corporate Guarantors;
(ii) a copy of each of the Corporate Guarantors' by-laws as complete and correct
on the date of this Agreement; and (iii) the stock ownership of each Corporate
Guarantor.
The Lender shall have received copies of the certificates of
incorporation and all amendments thereto of the Borrower and each of the
Corporate Guarantors, certified in each case by the Secretary of each such
entity and a certificate of existence and good standing with respect to the
Borrower and each Corporate Guarantor from the Secretary of State (or equivalent
officer) of the state of incorporation of the Borrower and each Corporate
Guarantor and from the Secretary of State (or equivalent officer) of any state
in which the Borrower and each Corporate Guarantor is authorized to do business.
The Lender shall have received copies of the (i) articles of
organization, (ii) operating agreement and all amendments thereto, (iii)
authenticated consents of members authorizing and approving this Agreement and
(iv) the name of the member/manager authorized to execute the Loan Documents of
each of the Limited Liability Company Guarantors.
The Lender shall have received copies of the (i) partnership
agreement and all amendments thereto, (ii) authenticated consents of partners
authorizing and approving this Agreement and (iii) the name of the partner
authorized to execute the Loan Documents of each of the General Partnership
Guarantors and Limited Partnership Guarantors.
The Lender shall have received copies of the (i) articles of
organization, (ii) operating agreement and (iii) all organizational documents
for each Venture Interest.
The Lender shall have received an opinion of Mark Lundy, Esq.,
general counsel for the Borrower and the Guarantors as to certain matters
referred to in Article IV hereof and as to such other matters as the Lender or
its counsel may reasonably request.
The Lender shall have received from each of the Guarantors, an
executed Guaranty.
The Lender and Bailee (as such term is defined in the Pledge
Agreement) shall have received from the Borrower an executed Pledge Agreement
giving to the Lenders a first priority security interest in the Equity Interest
of each Subsidiary and Guarantor (the "Collateral") and Bailee (as such term is
defined in the Pledge Agreement) shall have received, (i) all outstanding stock
certificates for each Subsidiary, Corporate Guarantor, and (ii) stock power
forms executed in blank.
The Lender shall have received confirmation that the UCC-1
filings in the appropriate jurisdictions have been filed to perfect the Lender's
security interests in the Collateral.
The following statements shall be true and the Lender shall
have received a certificate signed by the President, Vice President or Chief
Financial Officer of the Borrower dated the date hereof, stating that:
The representations and warranties contained in
Article IV of this Agreement and in the Loan Documents are
true and correct in all material respects on and as of such
date;
No Default or Event of Default has occurred and is
continuing, or would result from the making of the initial
Revolving Credit Loan;
All schedules, documents, certificates and other information
provided to the Lender pursuant to or in connection with this Agreement shall be
satisfactory to the Lender and its counsel in all material respects;
The Borrower and/or the Guarantors and/or their respective
Affiliates shall have established a banking and depository relationship with
each Lender;
The Lender shall have received the Borrower's 10-Q financial
statement filed with the SEC for the period fiscal quarter ended March 31, 2004;
All legal matters incident to this Agreement and the Loan
transactions contemplated hereby shall be reasonably satisfactory to Lenders'
counsel;
The Lender shall have received such other approvals, opinions
or documents as the Lender or its counsel may reasonably request;
The Lender shall have received payment of the reasonable legal
fees and expenses of the Lender's counsel;
The Lender shall have received payment of a commitment fee in
the amount set forth on Schedule 3.01(u), which the Borrower and Guarantors
acknowledge was earned by the Lender in connection with the transactions
contemplated hereby;
The Intercreditor and Payment Sharing Agreement shall have
been executed by the Lender and consented to by Borrower.
Conditions Precedent to All Revolving Credit Loans. The obligation of
the Lender to make each Revolving Credit Loan (including the initial Revolving
Credit Loan) shall be subject to the further condition precedent that on the
date of such Loan:
The following statements shall be true and each request for a
Revolving Credit Loan shall be deemed a certification by the Borrower that:
The representations and warranties contained in
Article IV of this Agreement and in the other Loan Documents
are true and correct on and as of such date as though made on
and as of such date; and
No Default or Event of Default has occurred and is
continuing, or would result from such Loan.
The Lender shall have received a covenant compliance
certificate prepared by management of the Borrower, indicating that, after
giving effect to the requested Loan, the Borrower shall remain in compliance
with all of the financial requirements set forth in 0 hereof.
The Lender shall have received such other approvals, opinions
or documents as the Lender may reasonably request.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. On the date hereof and on each date
that the Borrower requests a Revolving Credit Loan, the Borrower and each
Guarantor represents and warrants to each Lender as follows:
Subsidiaries. On the date hereof, the only Subsidiaries of the
------------
Borrower or any Guarantor are set forth on Schedule 4.01(a) annexed hereto. All
of the Equity Interests of such Subsidiaries shown as owned by the Borrower or
any Guarantor on Schedule 4.01(a) are owned by the Borrower or such Guarantor,
free and clear of any mortgage, pledge, lien or encumbrance. Except as set forth
on Schedule 4.01(a), there are not outstanding any warrants, options, contracts
or commitments of any kind entitling any Person to purchase or otherwise acquire
any securities or other Equity Interests of any Subsidiary, nor are there
outstanding any instruments which are convertible into or exchangeable for any
securities or other Equity Interests of any Subsidiary.
Organization. The Borrower and each Guarantor is a
------------
corporation, partnership or limited liability company, as applicable, duly
organized, validly existing and in good standing under the laws of the states of
their respective formation and the Borrower and each Guarantor has the power to
own its assets and to transact the business in which it is presently engaged.
The Borrower and each Guarantor is duly qualified and is in good standing in all
other jurisdictions where the failure to so qualify or be in good standing would
result in a Material Adverse Change in the Borrower or a Guarantor.
Due Execution, etc. The execution, delivery and performance by
-------------------
the Borrower and each Guarantor of this Agreement and the other Loan Documents
to which it is a party are within the Borrower's and each Guarantor's corporate,
limited liability company or partnership power, as applicable, and have been
duly authorized by all necessary corporate, limited liability company or
partnership action, as applicable, and do not and will not (i) require any
consent or approval of the stockholders, members or partners, as applicable, of
the Borrower or any Guarantor; (ii) contravene the Borrower's or any Guarantor's
certificate of incorporation or by-laws, partnership agreement, operating
agreement or articles of organization, as applicable; (iii) violate any
provision of or any law, rule, regulation, contractual restriction, order, writ,
judgment, injunction, or decree, determination or award binding on or affecting
the Borrower or any Guarantor; (iv) result in a breach of or constitute a
default under any indenture or loan or credit agreement, or any other agreement,
lease or instrument to which the Borrower or any Guarantor is a party or by
which it or its properties may be bound or affected; or (v) result in, or
require, the creation or imposition of any Lien (other than the Lien of the Loan
Documents) upon or with respect to any of the properties now owned or hereafter
acquired by the Borrower or any Guarantor.
No Authorization, etc. No authorization or approval or other
----------------------
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Borrower or any Guarantor of this Agreement or any other Loan Document to
which it is a party, except authorizations, approvals, actions, notices or
filings which have been obtained, taken or made (or to be made in connection
with UCC financing statements executed in connection herewith), as the case may
be.
Validity of Loan Documents. The Loan Documents when delivered
---------------------------
hereunder will have been duly executed and delivered on behalf of the Borrower
and each Guarantor and will be legal, valid and binding obligations of the
Borrower and each Guarantor, enforceable against the Borrower and each Guarantor
in accordance with their respective terms.
Financial Statements. The management prepared consolidated
---------------------
financial statements of the Borrower and its Subsidiaries for the three (3)
month fiscal period ended March 31, 2004, copies of each of which have been
furnished to the Lender, and the consolidated results of operations of the
Borrower and its Subsidiaries for the periods ended on such dates, all in
accordance with GAAP, fairly present in all material respects the consolidated
financial condition of the Borrower and its Subsidiaries as at such dates. Since
such date there has been (i) except as set forth in Schedule 4.01(f) hereto, no
material increase in the liabilities of the Borrower and its Subsidiaries or any
Guarantor and (ii) no Material Adverse Change in the Borrower, any Subsidiary or
any Guarantor.
No Litigation. There is no pending or threatened action,
--------------
proceeding or investigation against the Borrower or any Guarantor or any
Subsidiary before any court, governmental agency or arbitrator, which may either
in one case or in the aggregate, result in a Material Adverse Change in the
Borrower, such Guarantor or such Subsidiary.
Tax Returns. The Borrower, each Guarantor and each Subsidiary
------------
has filed all federal, state and local tax returns required to be filed (subject
to extensions granted) and has paid all taxes, assessments and governmental
charges and levies thereon to be due, including interest and penalties.
Licenses, etc. The Borrower, each Guarantor and each
--------------
Subsidiary possesses all licenses, permits, franchises, patents, copyrights,
trademarks and trade names, or rights thereto, to conduct its business
substantially as now conducted and as presently proposed to be conducted, and
neither the Borrower, any Guarantor nor any Subsidiary is in violation of any
similar rights of others.
Intentionally Omitted.
Margin Credit. Neither the Borrower, any Guarantor nor any
--------------
Subsidiary is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulations T, U or
X), and no proceeds of any Loan will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock or in any other way which will cause the Borrower or any
Guarantor to violate the provisions of Regulations T, U or X.
Compliance with Law. The Borrower, each Guarantor and each
--------------------
Subsidiary is in all material respects in compliance with all federal and state
laws and regulations in all jurisdictions where the failure to comply with such
laws or regulations could result in a Material Adverse Change in the Borrower,
such Guarantor or such subsidiary.
ERISA. The Borrower, each Guarantor, each Subsidiary and each
------
ERISA Affiliate of the Borrower, a Guarantor or a Subsidiary are in compliance
in all material respects with all applicable provisions of ERISA. Neither a
Reportable Event nor a Prohibited Transaction has occurred and is continuing
with respect to any Plan of the Borrower, a Guarantor or a Subsidiary; no notice
of intent to terminate a Plan of the Borrower, a Guarantor or a Subsidiary has
been filed nor has any Plan been terminated; no circumstances exist which
constitute grounds under Section 4042 of ERISA entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administrate, a Plan of the
Borrower, a Guarantor or a Subsidiary, nor has the PBGC instituted any such
proceedings; neither the Borrower, any Guarantor, any Subsidiary nor any ERISA
Affiliate of the Borrower, any Guarantor or any Subsidiary has completely or
partially withdrawn under Sections 4201 or 4204 of ERISA from a Multiemployer
Plan; the Borrower, each Guarantor, each Subsidiary and each ERISA Affiliate of
the Borrower, any Guarantor or any Subsidiary have met their minimum funding
requirements under ERISA with respect to all of their Plans and the present fair
market value of all Plan assets exceeds the present value of all vested benefits
under each Plan, as determined on the most recent valuation date of the Plan in
accordance with the provisions of ERISA for calculating the potential liability
of the Borrower, any Guarantor, any Subsidiary or any ERISA Affiliate of the
Borrower, any Guarantor or any Subsidiary to PBGC or the Plan under Title IV of
ERISA; and neither the Borrower, any Guarantor, or any Subsidiary nor any ERISA
Affiliate of the Borrower, a Guarantor or any Subsidiary has incurred any
liability to the PBGC under ERISA.
Hazardous Material. The Borrower, each Guarantor and each
-------------------
Subsidiary is, in all material respects, in compliance with all federal, state
or local laws, ordinances, rules, regulations or policies governing Hazardous
Materials; and neither the Borrower, any Guarantor nor any Subsidiary has used
Hazardous Materials on, from, or affecting any property now owned or occupied or
hereafter owned or occupied by the Borrower, any Guarantor or any Subsidiary in
any manner which violates federal, state or local laws, ordinances, rules,
regulations or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of Hazardous
Materials; and to the best of the Borrower's and each Guarantor's knowledge, no
prior owner of any such property or any tenant, subtenant, prior tenant or prior
subtenant of any such property have used Hazardous Materials on, from or
affecting such property in any manner which violates federal, state or local
laws, ordinances, rules, regulations, or policies governing the use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials except as set forth in the Borrower's files
which have been made available to the Lender.
Use of Proceeds. The proceeds of the Revolving Credit Loans
----------------
shall be used exclusively for the purposes set forth in O.
Title to Assets. The Borrower, each Guarantor and each
----------------
Subsidiary has good and marketable title to all of its properties and assets.
The Properties and assets of the Borrower and each Guarantor are not subject to
any mortgage, judgment or similar Lien other than those described in 0 hereof.
Casualty. Neither the business nor the properties of the
---------
Borrower, any Guarantor or any Subsidiary are affected by any fire, explosion,
accident, strike, hail, earthquake, embargo, act of God or of the public enemy,
or other casualty (whether or not covered by insurance), which could result in a
Material Adverse Change in the Borrower, any Guarantor or any Subsidiary.
Lien Priority. Except as disclosed on Schedule 4.01(r) or as
--------------
permitted by 0, the Lien(s) on the Collateral created by the Pledge Agreement(s)
constitute(s) valid first priority perfected security interests in favor of the
Lender.
Credit Agreements. Schedule 4.01(s) is a complete and correct
------------------
list of all Debt.
Solvency. The liability of each Guarantor as a result of the
---------
execution of its respective Guaranty and the execution of this Agreement shall
not cause the liabilities (including contingent liabilities) of such Guarantor
to exceed the fair saleable value of its assets.
Financial or Other Advantage. Each Guarantor acknowledges that
-----------------------------
it has derived or expects to derive a financial or other advantage from the
Loans obtained by the Borrower from the Lender.
COVENANTS OF THE BORROWER AND THE GUARANTORS
Affirmative Covenants. So long as any amount shall remain outstanding
under the Revolving Credit Notes or so long as the Commitment shall remain in
effect, the Borrower and each Guarantor will, and will cause each Subsidiary to,
unless each Lender shall otherwise consent in writing:
Compliance with Laws, Etc. Comply in all material respects
--------------------------
with all applicable laws, rules, regulations and orders, where the failure to so
comply could result in a Material Adverse Change in the Borrower, any Guarantor
or any Subsidiary;
Reporting Requirements. Furnish to each Lender:
----------------------
Annual Financial Statements. As soon as available and
----------------------------
in any event not later than the earlier of (x) the date
required to be filed with the SEC, or (y) 90 days after the
end of each fiscal year, a copy of the 10-K report of the
Borrower and its Subsidiaries for each fiscal year, including
audited consolidated financial statements with balance sheets
with related statements of income and retained earnings and
statements of cash flows, all in reasonable detail and setting
forth in comparative form the figures for the previous fiscal
year, together with an unqualified opinion, prepared by
management of the Borrower and certified by independent
certified public accountants selected by the Borrower and
reasonably satisfactory to the Lender, all such financial
statements to be prepared in accordance with GAAP,
consistently applied;
Quarterly Financial Statements. As soon as available
-------------------------------
and in any event not later than the earlier of (x) the date
required to be filed with the SEC, or (y) 45 days after the
end of each fiscal quarter, a copy of the 10-Q report of the
Borrower and its Subsidiaries for each fiscal quarter, (or in
the case of the fourth fiscal quarter, within 75 days after
the end of the quarter, such financial information as would be
provided in a 10-Q report, management prepared, and certified
by the chief financial officer of the Borrower), including
consolidated financial statements for such quarter and for
year to date, including a balance sheet with related
statements of income and retained earnings and a statement of
cash flows, all in reasonable detail and setting forth in
comparative form the figures for the comparable quarter and
comparable year to date period for the previous fiscal year,
all such financial statements to be prepared by management of
the Borrower in accordance with GAAP, consistently applied;
Management Letters. Promptly upon receipt thereof,
-------------------
copies of any reports submitted to the Borrower, any Guarantor
or any Subsidiary by independent certified public accountants
in connection with the examination of the financial statements
of the Borrower, any Guarantor or any Subsidiary made by such
accountants;
Accountant's Report. Simultaneously with the delivery
--------------------
of the annual financial statements referred to in 000, a
certificate of the independent certified public accountants
who audited such statements to the effect that, in making the
examination necessary for the audit of such statements, they
have obtained no knowledge of any condition or event which
constitutes a Default or Event of Default, or if such
accountants shall have obtained knowledge of any such
condition or event, they shall specify in such certificate
each such condition or event of which they have knowledge and
the nature and status thereof;
Quarterly Portfolio of Real Estate Investments. As
-----------------------------------------------
soon as available and in any event not later than 45 days
after the end of each fiscal quarter, a portfolio of real
estate investments substantially in the form attached as
Exhibit C hereto;
Certificate of No Default. Simultaneously with the
--------------------------
delivery of the financial statements referred to in 000 and 0,
a certificate of the President, Vice President or the Chief
Financial Officer of the Borrower, (1) certifying that to the
best of their knowledge after due inquiry no Default or Event
of Default has occurred and is continuing, or if a Default or
Event of Default has occurred and is continuing, a statement
as to the nature thereof and the action which is proposed to
be taken with respect thereto; and (2) with computations
demonstrating compliance with the covenants contained in 0 in
form and substance similar to Exhibit D;
Notice of Litigation. Promptly after the commencement
---------------------
thereof, notice of all actions, suits and proceedings before
any court or governmental department, commission, board,
bureau, agency, or instrumentality, domestic or foreign,
whether or not covered by insurance, affecting the Borrower,
any Guarantor or any Subsidiary which, if determined adversely
to the Borrower such Guarantor, or such Subsidiary could
result in a Material Adverse Change in the Borrower, such
Guarantor or such Subsidiary;
Notice of Defaults and Events of Default. As soon as
-----------------------------------------
possible and in any event within five (5) days after the
occurrence of each Default or Event of Default, a written
notice setting forth the details of such Default or Event of
Default and the action which is proposed to be taken by the
Borrower with respect thereto;
ERISA Reports. Promptly after the filing or receiving
--------------
thereof, copies of all reports, including annual reports, and
notices which the Borrower, any Guarantor or any Subsidiary
files with or receives under ERISA from the PBGC, the Internal
Revenue Service or the U.S. Department of Labor; and as soon
as possible after the Borrower or any Guarantor knows or has
reason to know that any Reportable Event or Prohibited
Transaction has occurred with respect to any Plan of the
Borrower, any Guarantor or any Subsidiary or that the PBGC or
the Borrower, any Guarantor or any Subsidiary has instituted
or will institute proceedings under Title IV of ERISA to
terminate any Plan, the Borrower will deliver to each Lender a
certificate of the President, Vice President or the Chief
Financial Officer of the Borrower setting forth details as to
such Reportable Event, Prohibited Transaction or Plan
termination and the action the Borrower proposes to take with
respect thereto;
Reports to Other Creditors. Promptly after the
---------------------------
furnishing thereof, copies of any statement or report
furnished to any other party pursuant to the terms of any
indenture, loan, credit or similar agreement and not otherwise
required to be furnished to the Lender pursuant to any other
clause of this 00;
Proxy Statements, Etc. Promptly after the sending or
----------------------
filing thereof, copies of all proxy statements, financial
statements and reports which the Borrower or any Corporate
Guarantor sends to its public stockholders, if any, and copies
of all regular, periodic, and special reports, all
registration statements which the Borrower or any Corporate
Guarantor files with the SEC or any governmental authority
which may be substituted therefor, or with any national
securities exchange and any press releases or other notices or
information publicly disseminated;
Notice of Affiliates. Promptly after any Person
---------------------
becomes an Affiliate of the Borrower or any Guarantor, notice
to the Lender of such Affiliate other than an Affiliate that
is a natural person;
Mortgage Financing. As soon as available and in any
-------------------
event not later than 30 days prior to the closing of any
mortgage financing against any Unencumbered Property, a
certificate prepared by management of the Borrower (i)
advising the Lender of the proposed mortgage financing, (ii)
detailing the Property or Properties to be mortgaged, (iii)
setting forth the source and terms of such financing, (iv)
providing a copy of the appraisal, if any, to the Lender if in
the possession or control of Borrower, and (v) evidencing
compliance with all of the financial covenants set forth in 0
hereof after giving effect to such mortgage financing;
Real Estate Acquisition Information. Such Real
-------------------------------------
Estate Acquisition Information as reasonably requested by
the Lender on a semi-annual basis; and
General Information. Such other information
--------------------
respecting the condition or operations, financial or
otherwise, of the Borrower, any Guarantor or any Subsidiary as
the Lender may from time to time reasonably request.
Taxes. Pay and discharge all taxes, assessments and
------
governmental charges upon the Borrower, any Guarantor, any Subsidiary, its or
their income and its or their properties prior to the dates on which penalties
are attached thereto, unless and only to the extent that (A) (i) such taxes
shall be contested in good faith and by appropriate proceedings by the Borrower,
such Guarantor or such Subsidiary, (ii) there be adequate reserves therefor in
accordance with GAAP entered on the books of the Borrower, such Guarantor or
such Subsidiary and (iii) no enforcement proceedings against the Borrower, such
Guarantor or such Subsidiary have been commenced or (B) the Property is owned by
a Written-Off Subsidiary.
Existence. Preserve and maintain the Borrower's, each
----------
Guarantor's and each Subsidiary's existence and good standing in the
jurisdiction of its formation and the rights, privileges and franchises of the
Borrower, each Guarantor and each Subsidiary in each case where failure to so
preserve or maintain could result in a Material Adverse Change in the Borrower,
the Guarantors and their respective Subsidiaries, taken as a whole.
Maintenance of Properties and Insurance. (i) Keep the
----------------------------------------
respective properties and assets (tangible or intangible) that are useful and
necessary in the Borrower's, each Guarantor's and each Subsidiary's business, in
good working order and condition, reasonable wear and tear excepted; and (ii)
maintain insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in similar businesses and owning properties doing business in
the same general areas in which the Borrower, each Guarantor and each Subsidiary
operates.
Books of Record and Account. Keep adequate records and proper
----------------------------
books of record and account in which complete entries will be made in a manner
to enable the preparation of financial statements in accordance with GAAP,
reflecting all financial transactions of the Borrower, each Guarantor and each
Subsidiary.
Visitation. At any reasonable time, and from time to time,
-----------
permit the Lender or any agents or representatives thereof, to examine and make
copies of and abstracts from the books and records of, and, subject to the
requirements of all applicable leases, visit the properties of, the Borrower,
each Guarantor and each Subsidiary and to discuss the affairs, finances and
accounts of the Borrower, each Guarantor and each Subsidiary with any of their
respective officers or directors or the Borrower's, such Guarantor's or such
Subsidiary's independent accountants.
Real Estate Acquisition Information. Provide the Real Estate
------------------------------------
Acquisition Information to the Lender as soon as practical but in no event less
than forty-eight (48) hours prior to submitting a Borrowing Notice attached as
Exhibit B hereto in connection with either a property acquisition or mortgage
refinancing;
Performance and Compliance with Other Agreements. Perform and
-------------------------------------------------
comply with each of the provisions of each and every agreement the failure to
perform or comply with which could result in a Material Adverse Change in the
Borrower, any Guarantor or any Subsidiary;
Continued Perfection of Liens and Security Interest. Record or
----------------------------------------------------
file or rerecord or refile any of the Loan Documents or a financing statement or
any other filing or recording or refiling or rerecording in each and every
office where and when necessary to preserve, perfect and continue the security
interests of the Loan Documents;
Pension Funding. Comply with the following and cause each
----------------
ERISA Affiliate of the Borrower, each Guarantor and each Subsidiary to comply
with the following:
engage solely in transactions which would not subject
any of such entities to either a civil penalty assessed
pursuant to Section 502(i) of ERISA or a tax imposed by
Section 4975 of the Internal Revenue Code in either case in an
amount in excess of $25,000.00;
make full payment when due of all amounts which,
under the provisions of any Plan or ERISA, the Borrower, each
Guarantor, each Subsidiary or any ERISA Affiliate of any of
same is required to pay as contributions thereto;
all applicable provisions of the Internal Revenue
Code and the regulations promulgated thereunder, including but
not limited to Section 412 thereof, and all applicable rules,
regulations and interpretations of the Accounting Principles
Board and the Financial Accounting Standards Board;
not fail to make any payments in an aggregate amount
greater than $25,000.00 to any Multiemployer Plan that the
Borrower, any Guarantor, any Subsidiary or any ERISA Affiliate
of the Borrower, any Guarantor or any Subsidiary may be
required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto; or
not take any action regarding any Plan which could
result in the occurrence of a Prohibited Transaction.
Licenses. Maintain at all times all licenses or permits
---------
necessary to the conduct of the business of the Borrower, each Guarantor and
each Subsidiary or as may be required by any governmental agency or
instrumentality thereof;
New Subsidiaries.
-----------------
Cause any Subsidiary of the Borrower formed after the
date of this Agreement owning Unencumbered Properties to
become a Guarantor of all obligations of the Borrower to the
Lender, whether incurred under this Agreement or otherwise and
such new Guarantor shall deliver an executed guaranty to the
Lender, in form and substance satisfactory to the Lender,
within three (3) days of after the date of formation of such
new Subsidiary;
Pledge to the Lender all of its Equity Interest on
any new Subsidiary or new Venture Interest pursuant to a
Pledge Agreement, and deliver to the Bailee (as such term is
defined in the Pledge Agreement) (i) all stock certificates
and other certificates evidencing such Equity Interest, and
(ii) stock power forms executed in blank within three (3) days
after the date of formation of such new Subsidiary; and
On the fifth (5th) calendar day of each month,
furnish to the Lender a complete schedule of all existing
Subsidiaries as of the first (1st) day of such month with an
asterisk next to any new Subsidiaries formed in the month
prior.
Intentionally Omitted.
----------------------
Maintenance of Real Estate Investment Trust Status. The
------------------------------------------------------
Borrower shall maintain at all times its existence as a real estate
investment trust;
Maintenance of Listing on National Stock Exchange. The
----------------------------------------------------
Borrower shall maintain at all times its listing on the New York Stock Exchange
or another nationally recognized stock exchange; and
Granting of Mortgages to Lender. Upon the occurrence of an
--------------------------------
Event of Default, the Borrower and/or the Guarantors shall grant first priority
mortgage liens, in favor of each Lender, against such Unencumbered Properties of
the Borrower and/or the Guarantors as are satisfactory to the Lender in the
maximum amount of the Note, together with appropriate title insurance policies,
appraisals, environmentals, etc. as may be reasonably requested by the Lender.
Release of Guarantor. In the event that any Guarantor
---------------------
refinances any Property, Lender shall release such Guarantor from its
obligations under its Guaranty, provided, however (i) neither Borrower nor such
Guarantor is in Default under this Agreement and (ii) Borrower or such Guarantor
has prepaid the proceeds of such refinance pursuant to 0.
Negative Covenants. So long as any amount shall remain outstanding
under the Note, or so long as the Commitment shall remain in effect, neither the
Borrower nor any Guarantor will, nor will the Borrower or any Guarantor permit
any Subsidiary to, without the written consent of each Lender:
Liens, Etc. Create, incur, assume or suffer to exist, any
-----------
Lien, upon or with respect to any of its properties, now owned or hereafter
acquired, except:
Liens in favor of any of the Lenders;
Liens for taxes or assessments or other government
charges or levies if not yet due and payable or if due and
payable if they are being contested in good faith by
appropriate proceedings and for which appropriate reserves are
maintained in accordance with GAAP or if the Property is owned
by a Written-Off Subsidiary;
Liens imposed by law, such as mechanics',
materialmen's, landlords', warehousemen's, and carriers'
Liens, and other similar Liens, securing obligations incurred
in the ordinary course of business which are not past due or
which are being contested in good faith by appropriate
proceedings and for which appropriate reserves are maintained
in accordance with GAAP;
Liens under workers' compensation, unemployment
insurance, Social Security, or similar legislation;
Liens, deposits, or pledges to secure the performance
of bids, tenders, contracts (other than contracts for the
payment of money), leases (permitted under the terms of this
Agreement), public or statutory obligations, surety, stay,
appeal, indemnity, performance or other similar bonds, or
other similar obligations arising in the ordinary course of
business;
Liens described in Schedule 5.02(a), provided that no
such Liens or the Debt secured thereby shall be renewed,
extended or refinanced (other than Liens described in (ix)
below);
Judgment and other similar Liens arising in
connection with court proceedings (other than those described
in 0), provided that the execution or other enforcement of
such judgment or Lien is effectively stayed and the claims
secured thereby are being actively contested in good faith and
by appropriate proceedings;
Easements, rights-of-way, restrictions, and other
similar encumbrances with respect to real property which,
either in one case or in the aggregate, do not materially
interfere with the Borrower's or a Guarantor's or a
Subsidiary's occupation, use and enjoyment of the property or
assets encumbered thereby in the normal course of its business
or materially impair the value of the property subject
thereto; or
Liens resulting from direct mortgage debt for the
purchase or refinance of real estate, provided that:
The obligation secured by any Lien so
created, assumed, or existing shall not
exceed 75% of the higher of cost or
appraised value of the property subject to
such Lien (or in the event an appraisal is
not available, Borrower shall submit to the
Lender a copy of the application and/or
commitment letter from an Institutional
Lender which makes it an express condition
that the loan amount not exceed 75% of the
value of the property), except upon written
consent from each Lender, which may be
withheld for any or no reason whatsoever;
and in connection with such request for
consent, Borrower shall submit to the Lender
in writing such information, including but
not limited to Real Estate Acquisition
Information, as Lender shall reasonably
require, and Lender shall reply in writing
to Borrower within fourteen (14) days after
receipt of all of the foregoing information.
Each such Lien shall attach only to the
property (or properties) so acquired or
refinanced and the improvements thereon; and
In the event that such Lien is against a
Guarantor, if required by the lender secured
by such Lien and no Event of Default has
occurred, the Guaranty of such Guarantor
shall be released by the Lender.
Debt. Create, incur, assume, or suffer to exist, any Debt,
-----
except:
Debt of the Borrower or a Guarantor under this
Agreement or the Note or any other Debt of the Borrower, a
Guarantor or a Subsidiary owing to the other Lenders;
Debt described in Schedule 5.02(b);
Accounts payable to trade creditors for goods or
services and current operating liabilities (other than for
borrowed money) in each case incurred in the ordinary course
of business and paid within the specified time, unless
contested in good faith and by appropriate proceedings; or
Debt of the Borrower, a Guarantor or a Subsidiary
secured by Liens permitted by 00
Intentionally Omitted.
Merger. Merge into, or consolidate with or into, or have
-------
merged into it, any Person; and, for the purpose of this subsection 0, the
acquisition or sale by the Borrower or a Guarantor by lease, purchase or
otherwise, of all, or substantially all, of the common stock or the assets of
any Person or of it shall be deemed a merger of such Person with the Borrower or
a Guarantor;
Sale of Assets, Etc. Sell, assign, transfer, lease or
--------------------
otherwise dispose of any of its assets, (including a sale leaseback transaction)
with or without recourse, other than in the ordinary course of its business.
Investments, Etc. Make any Investment other than Permitted
-----------------
Investments.
Transactions With Affiliates. Except in the ordinary course of
-----------------------------
business and pursuant to the reasonable requirements of the Borrower's, a
Guarantor's or Subsidiary's business and upon fair and reasonable terms no less
favorable to the Borrower, such Guarantor or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person not an
Affiliate, enter into any transaction, including, without limitation, the
purchase, sale, or exchange of property or the rendering of any service, with
any Affiliate.
Investments in Joint Ventures. Notwithstanding Section
------------------------------
5.02(f), (i) invest an aggregate amount of greater than Fifty Million
($50,000,000.00) Dollars OLP Net Lease Strategic Alliance LLC, a Delaware
limited liability company ("Strategic Alliance") of which no more than Twelve
Million Five Hundred Thousand ($12,500,000.00) Dollars may be invested in any
single Property owned by Strategic Alliance.
Guarantees. Guaranty, or in any other way become directly or
-----------
contingently obligated for any Debt of any other Person (including any
agreements relating to working capital maintenance, take or pay contracts or
similar arrangements) other than (i) the endorsement of negotiable instruments
for deposit in the ordinary course of business; or (ii) guarantees existing on
the date hereof and set forth in Schedule 5.02(i) annexed hereto; or (iii)
hazardous material indemnities; or (iv) indemnities regarding intentional fraud
or misrepresentation, misappropriation of security deposits or insurance
proceeds, waste, abandonment of any property, misapplication of rents post
default and other similar items.
Change of Business. Materially alter the nature of its
-------------------
business.
Fiscal Year. Change the ending date of its fiscal year
------------
from December 31.
Losses. Incur a consolidated net loss for any fiscal year.
-------
Accounting Policies. Change any accounting policies, except
--------------------
as permitted by GAAP.
Management. Fail to retain at least three (3) of Fredric H.
-----------
Gould, Jeffrey Fishman, Matthew Gould, David Kalish and Israel Rosenzweig in the
management of the Borrower.
Hazardous Material. Cause or permit any property owned or
-------------------
occupied by the Borrower, a Guarantor or a Subsidiary to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose, transfer, produce
or process Hazardous Materials, except in compliance with all applicable
federal, state and local laws or regulations; nor cause or permit, as a result
of any intentional or unintentional act or omission on the part of the Borrower,
a Guarantor, a Subsidiary or any tenant or subtenant, a release of Hazardous
Materials onto any property owned or occupied by the Borrower, a Guarantor, a
Subsidiary or onto any other property; fail to comply with all applicable
federal, state and local laws, ordinances, rules and regulations, whenever and
by whomever triggered; nor fail to obtain and comply with, any and all
approvals, registrations or permits required thereunder. The Borrower and the
Guarantors shall execute any documentation reasonably required by the Lender in
connection with the representations, warranties and covenants contained in this
sub-section and 0 of this Agreement.
Dividends, Etc. Upon the occurrence of an Event of Default,
---------------
the Borrower shall not make distributions in excess of the sum necessary to
permit the Borrower to maintain its status as a real estate investment trust.
Financial Requirements. So long as any amount shall remain outstanding
under the Note, or so long as the Commitment shall remain in effect:
Total Secured Debt to Total Secured Value. The Borrower and
------------------------------------------
the Guarantors will maintain at all times, on a consolidated basis, a ratio of
Total Secured Debt to Total Secured Value of not greater than 0.70 to 1.00, such
ratio to be tested quarterly.
Total Debt to Total Value. The Borrower and the Guarantors
--------------------------
will maintain at all times, on a consolidated basis, a ratio of Total Debt to
Total Value of not greater than 0.70 to 1.00, such ratio to be tested quarterly.
Debt Service Coverage Ratio. The Borrower and the Guarantors
----------------------------
will maintain at all times, on a consolidated basis, the ratio of (a) total
Adjusted Net Operating Income, to (b) Debt Service, of not less than 1.65 to
1.00, such ratio to be tested quarterly.
Venture Interest Investments. Borrower and the Guarantors
-----------------------------
shall not permit, on a consolidated basis, its Investment in Venture Interests
to exceed $90,000,000.00 in accordance with Section 5.02(h), to be tested
quarterly.
Minimum Total Unsecured Value. The Borrower and the Guarantor
------------------------------
shall own at least six (6) Unencumbered Properties with a minimum Total
Unsecured Value in the aggregate amount of Fifteen Million ($15,000,000.)
Dollars at all times.
Minimum Net Worth. Borrower will maintain at all times a
------------------
minimum Net Worth of at least One Hundred Thirty-Five Million ($135,000,000.00)
Dollars.
Loan to Unsecured Value Ratio. The Borrower and the Guarantors
------------------------------
will not permit at any time, on a consolidated basis, the ratio of (a) the
aggregate principal amount of the Loans outstanding to (b) total unsecured value
to exceed 2.00 to 1.00.
Fixed Charge Coverage Ratio. The Borrower and the Guarantors
----------------------------
will not permit the ratio of (a) Consolidated EBIT for any fiscal quarter, to
(b) Fixed Charges for such period, to be less than 1.35 to 1.00. Notwithstanding
the foregoing, non-compliance with this Section 5.03(h) shall only constitute an
Event of Default if such non-compliance occurs for two consecutive fiscal
quarters.
EVENTS OF DEFAULT
Events of Default. If any of the following events (each an "Event of
Default") shall occur and be continuing:
The Borrower shall fail to pay any installment of principal
of, or interest on, the Note when due, or the Borrower shall fail to pay any
fees or other amounts owed in connection with this Agreement when due; or
Any representation or warranty made by the Borrower or any
Guarantor in this Agreement or in any other Loan Document or which is contained
in any certificate, document, opinion, 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 when made;
or
The Borrower, any Guarantor or any Subsidiary shall fail to
perform any covenant contained in 0 of this Agreement on its part to be
performed or observed within fifteen (15) days of the date required for such
performance; provided however, that for a failure to perform under 0, 0 and
0(i), such longer period as shall be reasonably necessary to cause compliance
provided that Borrower, a Guarantor or a Subsidiary (as the case may be) shall
have commenced the curative process prior to the expiration of such fifteen (15)
day period and shall thereafter diligently and in good faith complete the
curative measure within ninety (90) days thereafter; or
The Borrower, any Guarantor or any Subsidiary shall fail to
perform any term, covenant or agreement contained in 0; provided, however, that
upon Borrower, any Guarantor or any Subsidiary's failure to perform under 0,
Borrower, any Guarantor or any Subsidiary shall be granted such longer period as
shall be reasonably necessary to cause compliance with said Section, provided
that Borrower, a Guarantor or a Subsidiary shall deliver to the Lender within
ninety (90) days thereafter, a written proposal regarding the curative process,
certified by an environmental company acceptable to the Lender, and such plan
must be approved by the Lenders' environmental consultants; or
The Borrower or any Guarantor shall fail to perform any term,
covenant or agreement contained in 0 on its part as is evidenced by the date
quarterly financial statements for each fiscal quarter pursuant to 0 are due
(the "Reporting Date"), provided, however, to the extent that Borrower or any
Guarantor is not in compliance with any of the 0 requirements on the Reporting
Date, Borrower or such Guarantor shall have (45) days from the Reporting Date to
comply with 0 and on the fifty-fifth (55th) day after the Reporting Date, shall
deliver a compliance certificate to the Lender along with such management
prepared financial statements which evidence that the Borrower or such Guarantor
is in compliance with 0.
The Borrower, any Guarantor or any Subsidiary shall fail to
perform or observe any other term, covenant or agreement contained in this
Agreement or in any other Loan Document (other than the Notes) on its part to be
performed or observed; or
The Borrower, any Guarantor or any Subsidiary shall fail to
pay any Debt or Debts of the Borrower, any Guarantor or any Subsidiary in the
singular or aggregate principal amount of $50,000.00 or more (excluding Debt
evidenced by the Notes), or any installment, interest or premium thereon, when
due (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace period, if
any, specified in the agreements or instruments relating to such Debt or Debts;
or any other default under any agreements or instruments relating to any such
Debt or Debts, or any other event shall occur and shall continue after the
applicable grace period, if any, specified in such agreements or instruments, if
the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Debt or Debts; or any such Debt or Debts
shall be declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment), prior to the stated maturity
thereof and is not then so paid within three (3) business days of the date same
shall have been declared due and payable; provided, however, that it shall not
constitute an Event of Default for a Written-Off Subsidiary not to pay its Debt;
or
The Borrower, any Guarantor or any Subsidiary shall generally
not pay its Debts as such Debts become due, or shall admit in writing its
inability to pay its Debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against the
Borrower, any Guarantor or any Subsidiary seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its Debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any substantial part of its
property and if instituted against the Borrower, any Guarantor or any Subsidiary
shall remain undismissed for a period of 30 days; or the Borrower, any Guarantor
or any Subsidiary shall take any action to authorize any of the actions set
forth above in this subsection 0; provided, however, that it shall not
constitute an Event of Default for a Written-Off Subsidiary not to pay its Debt
or to have a receiver or similar Person appointed; or
Any judgment or order or combination of judgments or orders
for the payment of money, in the amount of $100,000.00 or more, singularly or in
the aggregate, which sum shall not be subject to full, complete and effective
insurance coverage, shall be rendered against the Borrower, any Guarantor or any
Subsidiary and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; provided,
however, that it shall not constitute a Default for a Written-Off Subsidiary to
have a judgment entered against it; or
Any of the following events occur or exist with respect to the
Borrower, any Guarantor, any Subsidiary or any ERISA Affiliate of the Borrower,
any Guarantor or any Subsidiary: (i) any Prohibited Transaction involving any
Plan; (ii) any Reportable Event with respect to any Plan; (iii) the filing under
Section 4041 of ERISA of a notice of intent to terminate any Plan or the
termination of any Plan; (iv) any event or circumstance that might constitute
grounds entitling the PBGC to institute proceedings under Section 4042 of ERISA
for the termination of, or for the appointment of a trustee to administer, any
Plan, or the institution of the PBGC of any such proceedings; (v) complete or
partial withdrawal under Section 4201 or 4204 of ERISA from a Multiemployer Plan
or the reorganization insolvency, or termination of any Multiemployer Plan; and
in each case above, such event or condition, together with all other events or
conditions, if any, could in the opinion of the Lender subject the Borrower, any
Guarantor, any Subsidiary or any such ERISA Affiliate to any tax, penalty, or
other liability to a Plan, a Multiemployer Plan, the PBGC, or otherwise (or any
combination thereof) which is either singularly or in the aggregate $50,000.00
or more; or
Any Guarantor shall fail, beyond any applicable grace or cure
period, to perform or observe any term or provision of its Guaranty or any
representation or warranty made by any Guarantor (or any of its officers or
partners) in connection with such Guarantor's Guaranty shall prove to have been
incorrect in any material respect when made; or
This Agreement or any other Loan Document, at any time after
its execution and delivery and for any reason, ceases to be in full force and
effect or shall be declared to be null and void, or the validity or
enforceability of any document or instrument delivered pursuant to this
Agreement shall be contested by the Borrower, any Guarantor or any other party
to such document or instrument or the Borrower, any Guarantor or any other party
to such document or instrument shall deny that it has any or further liability
or obligation under any such document or instrument; or
An event of default beyond any applicable grace period
specified in any Loan Document other than this Agreement shall have occurred and
be continuing.
Remedies on Default. Upon the occurrence and continuance of an Event of
Default each Lender may by notice to the Borrower, (i) terminate the Commitment,
(ii) declare the Note, all interest thereon and all other amounts payable under
this Agreement to be due and payable, whereupon the Commitment shall be
terminated, the Note, all such interest and all such amounts shall become and be
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower and the
Guarantors and (iv) proceed to enforce its rights whether by suit in equity or
by action at law, whether for specific performance of any covenant or agreement
contained in this Agreement or any other Loan Document, or in aid of the
exercise of any power granted in either this Agreement or any other Loan
Document or proceed to obtain judgment or any other relief whatsoever
appropriate to the enforcement of its rights, or proceed to enforce any other
legal or equitable right which the Lender may have by reason of the occurrence
of any Event of Default hereunder or under any other Loan Document, provided,
however, upon the occurrence of an Event of Default referred to in 0, the
Commitment shall be immediately terminated, the Note, all interest thereon and
all other amounts payable under this Agreement shall be immediately due and
payable without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower and the Guarantors. Any
amounts collected pursuant to action taken under this 0 shall be applied to the
payment of, first, any costs incurred by the Lender in taking such action,
including but without limitation reasonable attorneys fees and expenses, second,
to payment of the accrued interest on the Note, and third, to payment of the
unpaid principal of the Note, in the order determined by the Lender.
Remedies Cumulative. No remedy conferred upon or reserved to the Lender
hereunder or in any other Loan Document is intended to be exclusive of any other
available remedy, but each and every such remedy shall be cumulative and in
addition to every other remedy given under this Agreement or any other Loan
Document or now or hereafter existing at law or in equity. No delay or omission
to exercise any right or power accruing upon any Event of Default shall impair
any such right or power or shall be construed to be a waiver thereof, but any
such right and power may be exercised from time to time and as often as may be
deemed expedient. In order to entitle the Lender to exercise any remedy reserved
to it in this Article VI, it shall not be necessary to give any notice, other
than such notice as may be herein expressly required in this Agreement or in any
other Loan Document.
MISCELLANEOUS
Amendments, Etc. No amendment, modification, termination or waiver of
any provision of any Loan Document to which the Borrower or any Guarantor is a
party, nor consent to any departure by the Borrower or any Guarantor from any
provision of any Loan Document to which it is a party, shall in any event be
effective unless the same shall be in writing and signed by the Lender, the
Borrower and any Guarantor that may be a party, and then such amendment, waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
Notices, Etc. All notices and other communications provided for in this
Agreement shall be in writing (including telegraphic communication) and mailed,
sent by nationally recognized overnight mail delivery service, or delivered, if
to the Borrower or any Guarantor, at the address of the Borrower set forth at
the beginning of this Agreement to the attention of David Kalish (with a
courtesy copy to Mark Lundy, Esq.) and if to each Lender, at the address of each
Lender as set forth on Schedule 1 or, as to each party, at such other address as
shall be designated by such party in a written notice to the other parties
complying as to delivery with the terms of this 0. All such notices and
communications shall be effective as to Borrower or any Guarantor (i) three (3)
business days after being mailed by registered or certified mail, postage
prepaid, (ii) upon delivery if by personal messenger or hand delivery service or
(iii) the next business day after depositing with an agent or reputable
overnight carrier service. All such notices and communications shall be
effective as to the Lender when actually received by the Lender.
No Waiver, Remedies. No failure on the part of the Lender to exercise,
and no delay in exercising, any right, power or remedy under any Loan Document,
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right. The remedies provided in the Loan Documents
are cumulative and not exclusive of any remedies provided by law.
Costs, Expenses and Taxes. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Lender in connection with the preparation,
execution, delivery and administration of this Agreement, the Note and any other
Loan Documents, including without limitation, the reasonable fees and expenses
of counsel for the Lender with respect thereto and with respect to advising the
Lender as to its rights and responsibilities under this Agreement and the other
Loan Documents, and all costs and expenses, if any (including reasonable counsel
fees and expenses), in connection with the enforcement of this Agreement, the
Note and any other Loan Documents. Other than for the default of the Lender
hereunder, the Borrower and the Guarantors shall at all times protect,
indemnify, defend and save harmless the Lender from and against any and all
claims, actions, suits and other legal proceedings, and liabilities,
obligations, losses, damages, penalties, judgments, costs, expenses or
disbursements which the Lender may, at any time, sustain or incur by reason of
or in consequence of or arising out of the execution and delivery of this
Agreement and the other Loan Documents and the consummation of the transactions
contemplated hereby. The Borrower and the Guarantors acknowledge that it is the
intention of the parties hereto that this Agreement shall be construed and
applied to protect and indemnify the Lender against any and all risks involved
in the execution and delivery of this Agreement and the other Loan Documents and
the consummation of the transactions contemplated hereby, all of which risks are
hereby assumed by the Borrower and the Guarantors, including, without
limitation, any and all risks of the acts or omissions, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority, provided that the Borrower and the Guarantors shall not
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Lender's gross negligence or willful misconduct. The provisions of this
0 shall survive the payment of the Note and the termination of this Agreement.
Right of Set-off. Upon the occurrence and during the continuance of any
Event of Default, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by the Lender or any affiliate of
the Lender to or for the credit or the account of the Borrower or any Guarantor
against any and all of the obligations of the Borrower and the Guarantors now or
hereafter existing under this Agreement, the Note and the other Loan Documents,
irrespective of whether or not the Lender shall have made any demand under this
Agreement, the Note or such other Loan Documents and although such obligations
may be unmatured. The rights of the Lender under this 0 are in addition to all
other rights and remedies (including, without limitation, other rights of
set-off) which the Lender may have.
Binding Effect. This Agreement shall become effective when it shall
have been executed by the Borrower, the Guarantors and each Lender and
thereafter it shall be binding upon and inure to the benefit of the Borrower,
the Guarantors and each Lender and their respective successors and assigns,
except that the Borrower and the Guarantors shall not have any right to assign
its or their rights hereunder or any interest herein without the prior written
consent of each Lender.
Further Assurances. The Borrower and each Guarantor agrees at any time
and from time to time at its expense, upon request of each Lender or its
counsel, to promptly execute, deliver, or obtain or cause to be executed,
delivered or obtained any and all further instruments and documents and to take
or cause to be taken all such other action the each Lender may reasonably deem
appropriate in obtaining the full benefits of, this Agreement or any other Loan
Document.
Section Headings, Severability, Entire Agreement. Section and
subsection headings have been inserted herein for convenience only and shall not
be construed as part of this Agreement. Every provision of this Agreement and
each other Loan Document is intended to be severable; if any term or provision
of this Agreement, any other Loan Document, or any other document delivered in
connection herewith shall be invalid, illegal or unenforceable for any reason
whatsoever, the validity, legality and enforceability of the remaining
provisions hereof or thereof shall not in any way be affected or impaired
thereby. All exhibits and schedules annexed to this Agreement shall be deemed to
be part of this Agreement. This Agreement, the other Loan Documents and the
exhibits and schedules annexed hereto and thereto embody the entire agreement
and understanding among the Borrower, the Guarantors and the Lender with respect
to the transactions contemplated hereby and supersede all prior agreements and
understandings relating to the subject matter hereof.
Governing Law. This Agreement, the Notes and all other Loan Documents
shall be governed by, and construed in accordance with, the laws of the State of
New York.
Waiver of Jury Trial. The Borrower, each Guarantor and the Lender waive
all rights to trial by jury in any action or proceeding involving, directly or
indirectly any matter (whether sounding in tort, contract or otherwise) in any
way, arising out of, relating to, or connected with this Agreement, any other
Loan Document or the transactions contemplated hereby.
Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
ONE LIBERTY PROPERTIES, INC.
By: /s/ Mark H. Lundy
---------------------------------
Mark H. Lundy, Vice President
OLP CHATTANOOGA, INC.
By: /s/ Mark H. Lundy
---------------------------------
Mark H. Lundy, Vice President
OLP PALM BEACH, INC.
By: /s/ Mark H. Lundy
---------------------------------
Mark H. Lundy, Vice President
OLP TEXAS, INC.
By: /s/ Mark H. Lundy
---------------------------------
Mark H. Lundy, Vice President
OLP HAMILTON, INC.
By: /s/ Mark H. Lundy
---------------------------------
Mark H. Lundy, Vice President
OLP CHULA VISTA CORP.
By: /s/ Mark H. Lundy
---------------------------------
Mark H. Lundy, Vice President
OLP THEATRES LLC
by: One Liberty Properties, Inc. its sole member
By: /s/ Mark H. Lundy
---------------------------------
Mark H. Lundy, Vice President
OLP MOVIES LLC
by: One Liberty Properties, Inc. its sole member
By: /s/ Mark H. Lundy
--------------------------------
Mark H. Lundy, Vice President
OLP TUCKER LLC
by: One Liberty Properties, Inc. its sole member
By: /s/ Mark H. Lundy
--------------------------------
Mark H. Lundy, Vice President
OLP LAKE WORTH LLC
by: One Liberty Properties, Inc. its sole member
By: /s/ Mark H. Lundy
--------------------------------
Mark H. Lundy, Vice President
OLP-NNN MANAGER LLC
by: One Liberty Properties, Inc. its sole member
By: /s/ Mark H. Lundy
---------------------------------
Mark H. Lundy, Vice President
OLP ATHENS LLC
by: One Liberty Properties, Inc. its sole member
By: /s/ Mark H. Lundy
----------------------------------
Mark H. Lundy, Vice President
VALLEY NATIONAL BANK,
MERCHANTS BANK DIVISION
By: /s/ Andrew Baron
----------------------------------
Name: Andrew Baron
Title: First Vice President
BANK LEUMI USA
By: /s/ Cynthia C. Wilbur
----------------------------------
Name: Cynthia C. Wilbur
Title: Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Marc Cooper
----------------------------------
Name: Marc Cooper
Title: First Vice President
By: /s/ Joel Bisenberg
----------------------------------
Name: Joel Bisenberg
Title: Vice President
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ John Chiti
----------------------------------
Name: John Chiti
Title: Vice President
SCHEDULE 1
----------
LENDERS
------------------------------------------------------- -------------------------- -------------------------------------
NAME AND ADDRESS COMMITMENT COMMITMENT PERCENTAGE (expressed
as a fraction)
------------------------------------------------------- -------------------------- -------------------------------------
------------------------------------------------------- -------------------------- -------------------------------------
VALLEY NATIONAL BANK $22,500,000.00 9/25
MERCHANTS BANK DIVISION
275 Madison Avenue
New York, New York 10016
Att: Andrew S. Baron, First V. P.
------------------------------------------------------- -------------------------- -------------------------------------
------------------------------------------------------- -------------------------- -------------------------------------
BANK LEUMI USA $10,000,000.00 4/25
562 Fifth Avenue
New York, New York 10036
Att: Cynthia Wilbur, Vice President
------------------------------------------------------- -------------------------- -------------------------------------
------------------------------------------------------- -------------------------- -------------------------------------
ISRAEL DISCOUNT BANK OF NEW YORK $10,000,000.00 4/25
511 Fifth Avenue
New York, New York 10017
Att: Marc Cooper, First V.P.
------------------------------------------------------- -------------------------- -------------------------------------
------------------------------------------------------- -------------------------- -------------------------------------
MANUFACTURERS AND TRADERS TRUST COMPANY $20,000,000.00 8/25
350 Park Avenue
New York, NY 10022
Attention: John Chiti, Vice President
------------------------------------------------------- -------------------------- -------------------------------------
SCHEDULE 1.01
GUARANTORS
----------------------------------------------- ------------------------------- --------------------------------------
NAME JURISDICTION TYPE OF ENTITY
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP CHATTANOOGA, INC. Tennessee Corporation
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP PALM BEACH, INC. Florida Corporation
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP TEXAS, INC. Texas Corporation
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP HAMILTON, INC. New York Corporation
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP CHULA VISTA CORP. California Corporation
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP THEATRES LLC Delaware Limited Liability Company
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP MOVIES LLC Delaware Limited Liability Company
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP TUCKER LLC Georgia Limited Liability Company
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP LAKE WORTH LLC Florida Limited Liability Company
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP-NNN MANAGER LLC Delaware Limited Liability Company
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
----------------------------------------------- ------------------------------- --------------------------------------
OLP ATHENS LLC Georgia Limited Liability Company
60 Cutter Mill Road, Suite 303
Great Neck, New York 11021
----------------------------------------------- ------------------------------- --------------------------------------
SCHEDULE 2.09
REQUIRED BALANCES
(Demand Deposit Amounts)
------------------------------------------------------------ ------------------
VALLEY NATIONAL BANK, MERCHANTS BANK DIVISION $450,000.00
------------------------------------------------------------ ------------------
------------------------------------------------------------ ------------------
BANK LEUMI USA $200,000.00
------------------------------------------------------------ ------------------
------------------------------------------------------------ ------------------
ISRAEL DISCOUNT BANK OF NEW YORK $200,000.00
------------------------------------------------------------ ------------------
------------------------------------------------------------ ------------------
MANUFACTURERS AND TRADERS TRUST COMPANY $400,000.00
------------------------------------------------------------ ------------------
SCHEDULE 3.01(u)
COMMITMENT FEES
------------------------------------------------------------ -----------------
VALLEY NATIONAL BANK, MERCHANTS BANK DIVISION $187,500.00
------------------------------------------------------------ -----------------
------------------------------------------------------------ -----------------
BANK LEUMI USA $87,500.00
------------------------------------------------------------ -----------------
------------------------------------------------------------ -----------------
ISRAEL DISCOUNT BANK OF NEW YORK $100,000.00
------------------------------------------------------------ -----------------
------------------------------------------------------------ -----------------
MANUFACTURERS AND TRADERS TRUST COMPANY $200,000.00
------------------------------------------------------------ -----------------
SCHEDULE 4.01(a)
Subsidiaries
Name
----
OLP BATAVIA, INC.
OLP IOWA, INC.
OLP TEXAS, INC.
OLP - TSA GEORGIA, INC.
OLP DIXIE DRIVE HOUSTON, INC.
OLP GREENWOOD VILLAGE, COLORADO, INC.
OLP FT. MYERS, INC.
OLP RABRO DRIVE CORP.
OLP CHATTANOOGA, INC.
OLP COLUMBUS, INC.
OLP MESQUITE, INC.
OLP SOUTH HIGHWAY HOUSTON, INC.
OLP SELDEN, INC.
OLP PALM BEACH, INC.
OLP NEW HYDE PARK, INC.
OLP CHAMPAIGN, INC.
OLP EL PASO, INC.
OLP HAMILTON, INC.
OLP PLANO, INC.
OLP HANOVER PA, INC.
OLP GRAND RAPIDS, INC.
OLP PLANO I, L.P.
OLP EL PASO I, L.P.
OLP HANOVER I LLC
OLP PLANO LLC
OLP EL PASO I LLC
OLP THEATRES LLC
OLP RONKONKOMA LLC
OLP HAUPPAUGE, LLC
OLP LAKE CHARLES LLC
OLP MOVIES LLC
OLP TUCKER LLC
OLP LAKE WORTH LLC
OLP SOMMERVILLE LLC
OLP MARCUS DRIVE LLC
OLP LOS ANGELES, INC.
OLP NEWARK LLC
OLP GP INC.
OLP TEXAS I, LP
OLP KNOXVILLE LLC
OLP SAGINAW LLC
OLP CENTERREACH, LLC
OLP JAMAICA QUEENS LLC
OLP ROSEVILLE MN, LLC
OLP STONEWATER ALEXANDRIA, LLC
OLP PARMA LLC
OLP-NNN MANAGER LLC
OLP ATHENS LLC
SCHEDULE 4.01(f)
MATERIAL EVENTS
---------------
None.
SCHEDULE 4.01(r)
LIEN PRIORITY
-------------
None.
SCHEDULE 4.01 (s)
Credit Agreements, etc.
-----------------------
See attached.
SCHEDULE 5.02(a)
Liens
-----
None.
SCHEDULE 5.02(b)
Debt
----
See attached.
SCHEDULE 5.02(i)
Guaranties
----------
None.
2
EXHIBIT A
REVOLVING CREDIT NOTE
$
------------------------ New York, New York
-------------------, 2004
FOR VALUE RECEIVED, on the Maturity Date, ONE LIBERTY PROPERTIES, INC.,
a Maryland corporation, having its principal place of business at 60 Cutter Mill
Road, Great Neck, New York 11021 (the "Borrower"), promises to pay to the order
of [Lender](the "Lender") at its office located at
-----------------------------------------------, the principal sum of the lesser
of: (a) ($ ) Dollars; or (b) the
------------------------------ -------------
aggregate unpaid principal amount of all Revolving Credit Loans made by the
Lender to the Borrower pursuant to the Agreement (as defined below).
The Borrower hereby authorizes the Lender to enter from time to time
the amount of each Loan to the Borrower and the amount of each payment on a Loan
on the schedule annexed hereto and made a part hereof. Failure of the Lender to
record such information on such schedule shall not in any way affect the
obligation of the Borrower to pay any amount due under this Note.
The Borrower shall pay interest on the unpaid balance of this Note from
time to time outstanding at said office, at the rate of interest and at the
times set forth in the Agreement.
All payments including prepayments on this Note shall be made in lawful
money of the United States of America in immediately available funds. Except as
otherwise provided in the Agreement, if a payment becomes due and payable on a
day other than a Business Day, the due date thereof shall be extended to the
next succeeding Business Day, and interest shall be payable thereon at the rate
herein specified during such extension.
This Note is the Revolving Credit Note referred to in that certain
Amended and Restated Loan Agreement among the Borrower, certain Guarantors and
Lender and others of even date herewith (the "Agreement"), as such Agreement may
be amended from time to time, and is subject to prepayment and its maturity is
subject to acceleration upon the terms contained in said Agreement. All
capitalized terms used in this Note and not defined herein shall have the
meanings given them in the Agreement.
If any action or proceeding be commenced to collect this Note or
enforce any of its provisions, the Borrower further agrees to pay all costs and
expenses of such action or proceeding and reasonable attorneys' fees and
expenses and further expressly waives any and every right to interpose any
counterclaim in any such action or proceeding. The Borrower hereby submits to
the jurisdiction of the Supreme Court of the State of New York and agrees with
the Lender that personal jurisdiction over the Borrower shall rest with the
Supreme Court of the State of New York for purposes of any action on or related
to this Note, the liabilities hereunder, or the enforcement of either or all of
the same. The Borrower hereby waives personal service by manual delivery and
agrees that service of process may be made by post-paid certified mail directed
to the Borrower at the Borrower's address designated in the Agreement or at such
other address as may be designated in writing by the Borrower to the Lender in
accordance with 0 of the Agreement, and that upon mailing of such process such
service be effective with the same effect as though personally served.
THE BORROWER HEREBY EXPRESSLY WAIVES ANY AND EVERY RIGHT TO A TRIAL BY
JURY IN ANY ACTION ON OR RELATED TO THIS NOTE, THE LIABILITIES HEREUNDER OR THE
ENFORCEMENT OF EITHER OR ALL OF THE SAME.
The Lender may transfer this Note (subject to 0 of the Agreement) and
may deliver the security or any part thereof to the transferee or transferees,
who shall thereupon become vested with all the powers and rights above given to
the Lender in respect thereto, and the Lender shall thereafter be forever
relieved and fully discharged from any liability or responsibility in the
matter. The failure of any holder of this Note to insist upon strict performance
of each and/or all of the terms and conditions hereof shall not be construed or
deemed to be a waiver of any such term or condition.
The Borrower and all endorsers and guarantors hereof waive presentment
and demand for payment, notice of non-payment, protest, and notice of protest.
This Note shall be construed in accordance with and governed by the
laws of the State of New York.
ONE LIBERTY PROPERTIES, INC.
By:
Name:
Title:
2
SCHEDULE OF REVOLVING CREDIT LOANS
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
Amount of
Principal Name of Principal
Date Amount of Loan Paid or Prepaid Unpaid Balance Person Making Notation
---- -------------- --------------- -------------- ----------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
EXHIBIT B
FORM OF BORROWING NOTICE
Date:
--------------------------
Valley National Bank, Merchants Bank Division
275 Madison Avenue
New York, New York 10036
Attention: Andrew Baron, First Vice President
Bank Leumi USA
562 Fifth Avenue
New York, New York 10036
Attention: Cynthia Wilbur, Vice President
Israel Discount Bank of New York
511 Fifth Avenue
New York, New York 10036
Attention: Marc Cooper, First Vice President
Manufacturers and Traders Trust Company
350 Park Avenue
New York, NY 10022
Attention: John Chiti, Vice President
We hereby refer you to the Amended and Restated Loan Agreement
dated as of , 2004 made between One Liberty Properties, Inc. and
---------------
certain other Guarantors and Valley National Bank, Merchants Bank Division, Bank
Leumi USA, Israel Discount Bank of New York and Manufacturers and Traders Trust
Company (the "Loan Agreement").
We wish to borrow the following amount from each Lender
pursuant to the Loan Agreement, in accordance with each Lender's Commitment
Percentage:
Valley National Bank,
Merchants Bank Division $
-----------------
Bank Leumi USA $
-----------------
Israel Discount Bank of New York $
-----------------
Manufacturers and Traders Trust Company $
-----------------
We have provided to Lender at least forty-eight (48) hours
prior to the date hereof, the Real Estate Acquisition
Information.
A. Funding
Borrow $ at a [Floating or LIBOR] Rate option with
------------
an Interest Period (if applicable) of [30, 60, 90 Days]
------------
B. Conversion Selection
Convert $ of outstanding principal of a Loan from
----------
a [Floating or LIBOR] Rate option, the final day of the current Interest Period
(if applicable) of which is ,
------------ ---------------, to a [Floating, or
LIBOR] Rate option, with an Interest Period (if applicable) of .
---------------
C. Continuation Selection
Continue $ of outstanding principal of a Loan
-------------
currently bearing Interest at the LIBOR Rate option the final day of the
current Interest Period (if applicable) of which is ,
----------------
, with an Interest Period (if applicable) of .
----------------- ---------------
D. Purpose of Loan
E. Expected means of repayment
Unless otherwise defined, terms used herein have the meanings
provided in the Loan Agreement.
SCHEDULE OF REVOLVING CREDIT LOANS
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
Amount of
Principal Name of Principal
Date Amount of Loan Paid or Prepaid Unpaid Balance Person Making Notation
---- -------------- --------------- -------------- ----------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
--------------- ---------------------- -------------------- ------------------------- ----------------------------------
EXHIBIT C
PORTFOLIO OF REAL ESTATE INVESTMENTS
------------------------------------
See attached.
EXHIBIT D
FORM OF COMPUTATION OF COVENANT COMPLIANCE
------------------------------------------
See attached.
FORM OF SECTION 3.01(m) CERTIFICATE
-----------------------------------
[DATE]
Reference is made to the Loan Agreement, dated as of ,
--------
2004, by and among One Liberty Properties, Inc., a Maryland corporation (the
"Borrower"), certain other guarantors as defined therein ("Guarantors") and
Valley National Bank, Merchants Bank Division, Bank Leumi USA, Israel Discount
Bank of New York and Manufacturers and Traders Trust Company (collectively, the
"Lender") (as the same may be amended, modified or supplemented from time to
time, the "Loan Agreement"). Capitalized terms used herein which are defined in
the Loan Agreement shall have the meanings therein defined. This Certificate is
delivered pursuant to Section 3.01(m) of the Loan Agreement.
The undersigned, being the duly elected, qualified and acting
chief financial officer of the Borrower, on behalf of the Borrower, and solely
in his or her capacity as an officer of the Borrower, hereby certifies and
warrants that:
1. is the [President] [Vice President] [Chief
-----------
Financial Officer] of the Borrower and that, as such, he or she is authorized to
execute this certificate on behalf of the Borrower.
2. The representations and warranties contained in Article IV
of the Loan Agreement and in the Loan Documents are true and correct in all
material respects on and as of the date hereof.
3. No Default or Event of Default has occurred and is
continuing or would result from the making of the initial Revolving Credit Loan.
BORROWER: ONE LIBERTY PROPERTIES, INC.
By:
-------------------------
Name:
-----------------------
Title: