Exhibit 3.1
ARTICLES OF INCORPORATION
OF
CEDAR INCOME FUND, LTD.
I, THE UNDERSIGNED, JAMES T. CUNNINGHAM, whose post-office address is c/o Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York, New
York 10038, being at least eighteen years of age, do hereby form a corporation, under and by virtue of the General Laws of the State of Maryland authorizing the formation of corporations.
ARTICLE I
Name
The name of the
Corporation shall be Cedar Income Fund, Ltd. (the “Corporation”).
ARTICLE II
Principal Office, Registered Office and Agent
The address of the Corporation’s principal office in Maryland is c/o The Corporation Trust, Incorporated, 300 East Lombard Street, Baltimore, Maryland 21202. The address of the Corporation’s
principal office and registered office in the State of Maryland is 300 East Lombard Street, Baltimore, Maryland 21202. The name of its registered agent at that office is The Corporation Trust, Incorporated, a Maryland corporation.
ARTICLE III
Purposes
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of Maryland as now or hereafter in force.
ARTICLE IV
Capital Stock
A. Authorized Shares. The total number of shares of all classes of capital stock that the Corporation shall have authority to issue is 55 million shares, consisting of 50 million shares of
Common Stock with a par value of $.01 per share (the “Common Stock”), amounting in the aggregate to par value of $500,000, and 5 million shares of Preferred Stock with a par value of $.01 per share (the “Preferred Stock”),
amounting in the aggregate to par value of $50,000.
B. Common Stock
1. Dividend Rights. Subject to the preferential dividend rights of the Preferred Stock, if any, as may be determined by the Board of Directors of the Corporation pursuant to paragraph C of this Article
IV, Holders (as defined below) shall be entitled to receive such dividends as may be declared by the Board of Directors of the Corporation. Upon the declaration of dividends hereunder, Holders shall be entitled to share in all such dividends, pro
rata, in accordance with the relative number of shares of Common Stock held by each such Holder.
2. Rights Upon Liquidation. Subject to the
preferential rights of the Preferred Stock, if any, as may be determined by the Board of Directors of the Corporation pursuant to paragraph C of this Article IV, in the event of any voluntary or involuntary liquidation, dissolution or winding up of,
or any distribution of the assets of, the Corporation, each Holder shall be entitled to receive, ratably with each other Holder, that portion of the assets of the Corporation available for distribution to its stockholders as the number of shares of
the Common Stock held by such Holder bears to the total number of shares of Common Stock then outstanding.
3. Voting Rights. Each Holder
shall be entitled to vote on all matters (on which a holder of Common Stock shall be entitled to vote), and shall be entitled to one vote for each share of the Common Stock held by such Holder.
4. Restrictions on Ownership and Transfer to Preserve Tax Benefit.
(a) Definitions
For the purposes of this Article IV, the following terms shall have the
following meanings:
“Act” shall mean the General Corporation Law of Maryland.
“Beneficial Ownership” shall mean ownership of Common Stock by a Person who would be treated as an owner of such shares of Common Stock either
directly or constructively through the application of Section 544 of the Code, as modified by Section 856(h) of the Code. The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have
the correlative meanings.
“Charitable Trust” shall mean the trust created pursuant to subparagraph B(4)(c)(i) of this Article IV.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
2
“Constructive Ownership” shall mean ownership of Common Stock by a Person who would be treated as
an owner of such shares of Common Stock either directly or constructively through the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Owner,” “Constructively
Owns” and “Constructively Owned” shall have the correlative meanings.
“Date of the Merger” shall mean the latter of
the Merger and the redemption of shares of Common Stock held by Cedar Bay Company in exchange for Units.
“Existing Holder” shall
mean (i) Cedar Bay Company and (ii) any Person (other than another Existing Holder) to whom an Existing Holder transfers Beneficial Ownership of Common Stock causing such transferee to Beneficially Own Common Stock in excess of the
Ownership Limit.
“Existing Holder Limit” (i) for any Existing Holder who is an Existing Holder by virtue of clause (i) of
the definition thereof, shall mean, initially, the percentage of Common Stock Beneficially Owned by such Person immediately after the Merger, and after any adjustment pursuant to subparagraph B(4)(i) of this Article IV, shall mean such percentage of
the outstanding Common Stock as so adjusted; and (ii) for any Existing Holder who becomes an Existing Holder by virtue of clause (ii) of the definition thereof, shall mean, initially, the percentage of the outstanding Common Stock
Beneficially Owned by such Existing Holder at the time that such Existing Holder becomes an Existing Holder, and after any adjustment pursuant to subparagraph B(4)(i) of this Article IV, shall mean such percentage of the outstanding Common Stock as
so adjusted; provided, however, that the Existing Holding Limits for all Existing Holders when combined shall not exceed 85% of the Corporation’s Common Stock. For purposes of determining the Existing Holder Limit, the amount of Common Stock
outstanding at the time of the determination shall be deemed to include the maximum number of shares that Existing Holders may beneficially own with respect to options and rights to convert Units into Common Stock pursuant to Section 8.6 of the
Partnership Agreement and shall not include shares that may be Beneficially Owned solely by other persons upon exercise of options or rights to convert into Common Stock. From the Date of the Merger and prior to the Restriction Termination Date, the
Secretary of the Corporation shall maintain and, upon request, make available to each Existing Holder, a schedule which sets forth the then current Existing Holder Limits for each Existing Holder.
“Holder” shall mean the record holder of shares of Common Stock, or in the case of shares held by a Purported Record Transferee, the Charitable
Trust.
“IRS” shall mean the United States Internal Revenue Service.
3
“Market Price” shall mean the last reported sales price reported on the New York Stock Exchange of
Common Stock on the trading day immediately preceding the relevant date, or if the Common Stock is not then traded on the New York Stock Exchange, the last reported sales price of the Common Stock on the trading day immediately preceding the
relevant date as reported on any exchange or quotation system over which the Common Stock may be traded, or if the Common Stock is not then traded over any exchange or quotation system, then the market price of the Common Stock on the relevant date
as determined in good faith by the Board of Directors of the Corporation.
“Merger” shall mean the merger of Cedar Income Fund,
Ltd., an Iowa corporation, with and into the Corporation, its wholly-owned subsidiary.
“Ownership Limit” shall initially mean 3.5%
of the outstanding Common Stock of the Corporation, and after any adjustment as set forth in subparagraph B(4)(i) of this Article IV, shall mean such greater percentage.
“Partner” shall mean any Person owning Units.
“Partnership” shall mean Cedar
Income Fund Partnership, L.P., a Delaware limited partnership.
“Partnership Agreement” shall mean the Agreement of Limited
Partnership of the Partnership, of which the Corporation is the sole general partner, as such agreement may be amended from time to time.
“Person” shall mean an individual, corporation, partnership, estate, trust, a portion of a trust permanently set aside for or to be used
exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity and also includes a group as that term is used for
purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended; but does not include (i) Cedar Bay Company, and (ii) an underwriter which participates in a public offering of the Common Stock provided that the
ownership of Common Stock by such underwriter would not result in the Corporation failing to qualify as a REIT.
“Purported
Transferee” shall mean, with respect to any purported Transfer which results in a violation of subparagraph B(4)(b) of this Article IV, the purported beneficial transferee or owner for whom the Purported Record Transferee would have acquired or
owned shares of Common Stock, if such Transfer had been valid under such subparagraph.
“Purported Record Transferee” shall mean,
with respect to any purported Transfer which results in a violation of subparagraph B(4)(b) of this Article IV, the record holder of the Common Stock if such Transfer had been valid under such subparagraph.
“REIT” shall mean a Real Estate Investment Trust under Section 856 of the Code.
4
“Restriction Termination Date” shall mean the first day after the Date of the Merger on which the
Board of Directors of the Corporation determines that it is no longer in the best interests of the Corporation to attempt to, or continue to, qualify as a REIT.
“Transfer” shall mean any sale, transfer, gift, assignment, devise or other disposition of Common Stock (including (i) the granting of any option or entering into any agreement for the
sale, transfer or other disposition of Common Stock or (ii) the sale, transfer, assignment or other disposition of any securities or rights convertible into or exchangeable for Common Stock), whether voluntary or involuntary, whether of record
or beneficially or Beneficially or Constructively (including but not limited to transfers of interests in other entities which result in changes in Beneficial or Constructive Ownership of Common Stock), and whether by operation of law or otherwise.
“Trustee” shall mean the Corporation as trustee for the Charitable Trust, and any successor trustee appointed by the Corporation.
“Units” shall mean the units into which partnership interests of the Partnership are divided, and as the same may be adjusted, as
provided in the Partnership Agreement.
(b) Restriction on Ownership and Transfers.
(i) Except as provided in subparagraph B(4)(k) of this Article IV, from the Date of the Merger and prior to the Restriction Termination Date, no Person (other than an Existing Holder) shall Beneficially
Own shares of Common Stock in excess of the Ownership Limit, and no Existing Holder shall Beneficially Own shares of Common Stock in excess of the Existing Holder Limit for such Existing Holder.
(ii) Except as provided in subparagraph B(4)(k) of this Article IV, from the Date of the Merger and prior to the Restriction Termination Date, any
Transfer that, if effective, would result in any Person (other than an Existing Holder) Beneficially Owning Common Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of such shares of Common Stock which would be
otherwise Beneficially Owned by such Person in excess of the Ownership Limit; and the Purported Transferee shall acquire no rights in such shares of Common Stock.
(iii) Except as provided in subparagraph B(4)(k) of this Article IV, from the Date of the Merger and prior to the Restriction Termination Date, any Transfer that, if effective, would result in any
Existing Holder Beneficially Owning Common Stock in excess of the applicable Existing Holder Limit shall be void ab initio as to the Transfer of such shares of Common Stock which would be otherwise Beneficially Owned by such Existing Holder in
excess of the applicable Existing Holder Limit; and such Existing Holder shall acquire no rights in such shares of Common Stock.
5
(iv) Except as provided in subparagraph B(4)(k) of this Article IV, from the Date of the Merger and prior to
the Restriction Termination Date, any Transfer that, if effective, would result in the Common Stock being beneficially owned by less than 100 Persons (determined without reference to any rules of attribution) shall be void ab initio as to the
Transfer of such shares of Common Stock which would be otherwise beneficially owned by the transferee; and the intended transferee shall acquire no rights in such shares of Common Stock.
(v) Notwithstanding any other provisions contained in this Article IV, from the Date of the Merger and prior to the Restriction Termination Date, any Transfer or other event that, if effective, would
result in the Corporation being “closely held” within the meaning of Section 856(h) of the Code, or would otherwise result in the Corporation failing to qualify as a REIT (including, but not limited to, a Transfer or other event that
would result in the Corporation owning (directly or Constructively) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Corporation from such tenant would cause the Corporation to fail to
satisfy any of the gross income requirements of Section 856(c) of the Code), shall be void ab initio as to the Transfer of the shares of Common Stock which would cause the Corporation to be “closely held” within the meaning of
Section 856(h) of the Code or would otherwise result in the Corporation failing to qualify as a REIT; and the intended transferee or owner or Constructive or Beneficial Owner shall acquire or retain no rights in such shares of Common Stock.
(c) Effect of Transfer in Violation of Subparagraph (B)(4)(b).
(i) If, notwithstanding the other provisions contained in this Article IV, at any time after the Date of the Merger and prior to the Restriction Termination Date, there is a purported Transfer, change in
the capital structure of the Corporation, or other event such that one or more of the restrictions on ownership and transfers described in subparagraph B(4)(b) above has been violated, then the shares of Common Stock being Transferred (or in the
case of an event other than a Transfer, the shares owned or Constructively Owned or Beneficially Owned) which would cause one or more of the restrictions on ownership or transfer to be violated (rounded up to the nearest whole share) (the
“Trust Shares”), shall automatically be transferred to the Corporation, as Trustee of a trust (the “Charitable Trust”) for the exclusive benefit of The American Cancer Society (the “Designated Charity”), an organization
described in Section 170(b)(1)(A) and 170(c) of the Code. The Purported Transferee shall have no rights in such Trust Shares.
(ii) The
Corporation, as Trustee of the Charitable Trust, may transfer the shares held in such trust to a Person whose ownership of the shares will not result in a violation of the ownership restrictions (a “Permitted Transferee”). If such a
transfer is made, the interest of the Designated Charity will terminate and proceeds of the sale will be payable to the Purported Transferee and to the Designated Charity. The Purported Transferee will receive the lesser of (1) the price paid
by the Purported Transferee for the shares or, if the Purported Transferee did not give value for the shares, the Market Price of the shares on the day of the event causing the shares to be held in trust, and (2) the price per share received by
the Corporation, as Trustee, from the sale or other disposition of the shares held in trust. The Designated Charity will receive any proceeds in excess of the amount payable to the Purported Transferee. The Purported Transferee will not be entitled
to designate a Permitted Transferee.
6
(iii) All stock held in the Charitable Trust will be deemed to have been offered for sale to the Corporation
or its designee for a
90-day
period, at the lesser of the price paid for that stock by the Purported Transferee and the Market Price on the date that the Corporation accepts the offer. This period will
commence on the date of the violative transfer, if the Purported Transferee gives notice to the Corporation of the transfer, or the date that the Board of Directors of the Corporation determines that a violative transfer occurred, if no such notice
is provided.
(iv) Any dividend or distribution paid prior to the discovery by the Corporation that shares of Common Stock have been
transferred in violation of subparagraph B(4)(b) of this Article IV, shall be repaid to the Corporation upon demand and shall be held in trust for the Designated Charity. Any dividend or distribution declared but unpaid shall be rescinded as void ab
initio with respect to such shares of stock.
(v) Subject to the preferential rights of the Preferred Stock, if any, as may be determined by
the Board of Directors of the Corporation pursuant to paragraph C of this Article IV, in the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, the Designated
Charity shall be entitled to receive, ratably with each other holder of Common Stock, that portion of the assets of the Corporation available for distribution to its stockholders as the number of Trust Shares bears to the total number of shares of
Common Stock then outstanding (including the Trust Shares). The Corporation, as Trustee, or if the Corporation shall have been dissolved, any trustee appointed by the Corporation prior to its dissolution, shall distribute to the Designated Charity,
when determined (or if not determined, or only partially determined, ratably to the other holders of Common Stock who have been determined and the Designated Charity), any such assets received in respect of the Trust Shares in any liquidation,
dissolution or winding up of, or any distribution of the assets of, the Corporation.
(vi) The Purported Transferee will not be entitled to
vote any Common Stock it attempts to acquire, and any stockholder vote will be rescinded if a Purported Transferee votes and the stockholder vote would have been decided differently if such Purported Transferee’s vote was not counted.
(d) Remedies for Breach. If the Board of Directors or its designees shall at any time determine in good faith that a Transfer or other event
has taken place in violation of subparagraph B(4)(b) of this Article IV or that a Person intends to acquire or has attempted to acquire beneficial ownership (determined without reference to any rules of attribution), Beneficial Ownership or
Constructive Ownership of any shares of the Corporation in violation of subparagraph B(4)(b) of this Article IV, the Corporation shall inform the Purported Transferee of its obligations pursuant to this Article IV, including such Purported
Transferee’s obligations to pay over to the Charitable Trust any and all dividends received with respect to the Trust Shares. In addition, the Board of Directors or its designees shall take such action as it deems advisable to refuse to give
effect or to prevent such Transfer, including, but not limited to, refusing to give effect to such Transfer on the books of the Corporation or instituting proceedings to enjoin such Transfer and to recover any dividend erroneously paid and declaring
any votes erroneously cast to be retroactively invalid; provided, however, that any Transfers (or, in the case of events other than a Transfer, ownership or Constructive Ownership or Beneficial Ownership) in violation of subparagraph B(4)(b) of this
Article IV shall automatically result in a transfer to the Charitable Trust as described in subparagraph B(4)(c), irrespective of any action (or
non-action)
by the Board of Directors.
7
(e) Notice of Restricted Transfer. Any Person who acquires or attempts to acquire shares in violation of
subparagraph B(4)(b) of this Article IV, or any Person who is a Purported Transferee, shall immediately give written notice to the Corporation of such event and shall provide to the Corporation such other information as the Corporation may request
in order to determine the effect, if any, of such Transfer or attempted Transfer on the Corporation’s status as a REIT.
(f) Owners
Required To Provide Information. From the Date of the Merger and prior to the Restriction Termination Date each Person who is a beneficial owner or Beneficial Owner or Constructive Owner of Common Stock and each Person (including the stockholder of
record) who is holding Common Stock for a Beneficial Owner or Constructive Owner shall provide to the Corporation such information that the Corporation may request, in good faith, in order to determine the Corporation’s status as a REIT.
(g) Remedies Not Limited. Nothing contained in this Article IV shall limit the authority of the Board of Directors to take such other action
as it deems necessary or advisable to protect the Corporation and the interests of its stockholders by preservation of the Corporation’s status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the application of any of the provisions of subparagraph B(4) of this Article IV, including any definition contained in subparagraph B(4)(a), the Board of
Directors shall have the power to determine the application of the provisions of this subparagraph B(4) with respect to any situation based on the facts known to it.
(i) Modification of Ownership Limit or Existing Holder Limit. Subject to the limitations provided in subparagraph B(4)(j), the Board of Directors may from time to time increase the Ownership Limit or the
Existing Holder Limit and shall file Articles Supplementary with the State Department of Assessment and Taxation of Maryland to evidence such increase.
8
(j) Limitations on Modifications.
(i) From the Date of the Merger and prior to the Restriction Termination Date, neither the Ownership Limit nor any Existing Holder Limit may be increased (nor may any additional Existing Holder Limit be
created) if, after giving effect to such increase (or creation), five Persons who are Beneficial Owners of Common Stock (including all of the then Existing Holders) could (taking into account the Ownership Limit and the Existing Holder Limit)
Beneficially Own, in the aggregate, more than 49% of the outstanding Common Stock.
(ii) Prior to the modification of any Existing Holder
Limit or Ownership Limit pursuant to subparagraph B(4)(i) of this Article IV, the Board of Directors of the Corporation may require such opinions of counsel, affidavits, undertakings or agreements as it may deem necessary or advisable in order to
determine or ensure the Corporation’s status as a REIT.
(iii) No Existing Holder Limit shall be reduced to a percentage which is less
than the Ownership Limit.
(iv) The Ownership Limit may not be increased to a percentage which is greater than 9.9%.
(k) Exceptions.
(i) The Board of Directors,
in its sole discretion, may exempt a Person from the Ownership Limit or the Existing Holder Limit, as the case may be, if such Person is not an individual for purposes of Section 542(a)(2) of the Code and the Board of Directors obtains such
representations and undertakings from such Person as are reasonably necessary to ascertain that no individual’s Beneficial Ownership of such shares of Common Stock will violate the Ownership Limit or the applicable Existing Holder Limit, as the
case may be, and agrees that any violation of such representations or undertaking (or other action which is contrary to the restrictions contained in this subparagraph B(4) of this Article IV) or attempted violation will result in such shares of
Common Stock automatically being transferred to the Charitable Trust.
(ii) Prior to granting any exception pursuant to subparagraph
B(4)(k)(i) of this Article IV, the Board of Directors may require a ruling from the IRS, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors in its sole discretion, as it may deem necessary or
advisable in order to determine or ensure the Corporation’s status as a REIT.
9
5. Legend. Each certificate for shares of Common Stock shall bear legends substantially to the effect of the
following:
“The Corporation is authorized to issue two classes of capital stock which are designated as Common Stock and Preferred
Stock. The Board of Directors is authorized to determine the preferences, limitations and relative rights of the Preferred Stock before the issuance of any Preferred Stock. The Corporation will furnish, without charge, to any stockholder making a
written request therefor, a copy of the Corporation’s charter and a written statement of the designations, relative rights, preferences and limitations applicable to each such class of stock. Requests for the Corporation’s charter and such
written statement may be directed to Cedar Income Fund, Ltd., 44 South Bayles Avenue, Port Washington, New York 11050, Attention: Secretary.
The shares of Common Stock represented by this certificate are subject to restrictions on ownership and Transfer for the purpose of the
Corporation’s maintenance of its status as a Real Estate Investment Trust under the Code. No Person may Beneficially Own shares of Common Stock in excess of 3.5% (or such greater percentage as may be determined by the Board of Directors of the
Corporation) of the outstanding Common Stock of the Corporation (unless such Person is an Existing Holder) with certain exceptions set forth in the Corporation’s charter. Any Person who attempts to Beneficially Own shares of Common Stock in
excess of the above limitations must immediately notify the Corporation. All capitalized terms in this legend have the meanings defined in the Corporation’s charter. Transfers in violation of the restrictions described above may be void ab
initio.
In addition, upon the occurrence of certain events, if the restrictions on ownership are violated, the shares of Common Stock
represented hereby may be automatically exchanged for Trust Shares which will be held in trust by the Corporation. The Corporation has an option to acquire Trust Shares under certain circumstances. The Corporation will furnish to the holder hereof
upon request and without charge a complete written statement of the terms and conditions of the Trust Shares. Requests for such statement may be directed to Cedar Income Fund, Ltd., 44 South Bayles Avenue, Port Washington, New York 11050, Attention:
Secretary.”
6. Severability. If any provision of this Article IV or any application of any such provision is determined to be invalid by
any Federal or state court having jurisdiction over the issues, the validity of the remaining provisions shall not be affected and other applications of such provisions shall be affected only to the extent necessary to comply with the determination
of such court.
C. Preferred Stock. The Board of Directors of the Corporation, by resolution, is hereby expressly vested with authority to
provide for the issuance of the shares of Preferred Stock in one or more classes or one or more series, with such voting powers, full or limited, or no voting powers, and with such designations, preferences and relative, participating, optional and
other special rights, and qualifications, limitations or restrictions thereof, if any, as shall be stated and expressed in the resolution or resolutions providing for such issue adopted by the Board of Directors. Except as otherwise provided by law,
the holders of the Preferred Stock of the Corporation shall only have such voting rights as are provided for or expressed in the resolutions of the Board of Directors relating to such Preferred Stock adopted pursuant to the authority contained in
the Articles of Incorporation. Before issuance of any such shares of Preferred Stock, the Corporation shall file Articles Supplementary with the State Department of Assessment and Taxation of Maryland in accordance with the provision of
Section 2-208
of the Act.
10
D. Reservation of Shares. Pursuant to the obligations of the Corporation under the Partnership Agreement to
issue shares of Common Stock in exchange for Units, the Board of Directors is hereby required to reserve a sufficient number of authorized but unissued shares of Common Stock to permit the Corporation to issue shares of Common Stock in exchange for
Units that may be exchanged for shares of Common Stock pursuant to the Partnership Agreement.
E. Preemptive Rights. No holder of shares of
capital stock of the Corporation shall, as such holder, have any preemptive or other right to purchase or subscribe for any shares of Common Stock or any class of capital stock of the Corporation which the Corporation may issue or sell.
F. Control Shares. Pursuant to
Section 3-702(b)
of the Act, the terms of Subtitle 7 of Title 3 of the Act
shall be inapplicable to any acquisition of a Control Share (as defined in the Act) that is not prohibited by the terms of Article IV.
G.
Business Combinations. Pursuant to
Section 3-603(e)(1)(iii)
of the Act, the terms of
Section 3-602
of such law shall be inapplicable to the Corporation.
ARTICLE V
Board of Directors
A. Management. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors.
B. Number. The number of directors which will constitute the entire
Board of Directors shall be fixed by, or in the manner provided in, the
By-Laws
but shall in no event be less than three. The names of the directors who shall act until the first annual meeting or until their
successors are duly chosen and qualified are Leo S. Ullman, J.A.M.H. der Kinderen and Everett B. Miller III.
C. Classification. The directors
shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, as shall be provided in the
By-Laws
of the Corporation, one class
to be originally elected for a term expiring at the annual meeting of stockholders to be held in 1999, another class to be originally elected for a term expiring at the annual meeting of stockholders to be held in 2000, and another class to be
originally elected for a term expiring at the annual meeting of stockholders to be held in 2001, with each class to hold office until its successors are elected and qualified. At each annual meeting of the stockholders of the Corporation, the date
of which shall be fixed by or pursuant to the
By-Laws
of the Corporation, the successors of the class of directors whose terms expire at that meeting shall be elected to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of their election. No election of directors need be by written ballot. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
11
D. Vacancies. Newly created directorships resulting from any increase in the number of directors may be
filled by the Board of Directors, or as otherwise provided in the
By-Laws,
and any vacancies on the Board of Directors resulting from death, resignation, removal or other cause shall only be filled by the
affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining director, or as otherwise provided in the
By-Laws.
Any
director elected in accordance with the preceding sentence shall hold office until the next annual meeting of the Corporation, at which time a successor shall be elected to fill the remaining term of the position filled by such director.
E. Removal. Any director may be removed from office only for cause and only by the affirmative vote of the holders of a majority of the combined voting
power of the then outstanding shares entitled to vote in the election of directors. For purposes of this subparagraph E of Article V “cause” shall mean the willful and continuous failure of a director to substantially perform such
director’s duties to the Corporation (other than any such failure resulting from temporary incapacity due to physical or mental illness) or the willful engaging by a director in gross misconduct materially and demonstrably injurious to the
Corporation.
F.
By-Laws.
The power to adopt, alter and/or repeal the
By-Laws
of the Corporation is vested exclusively in the Board of Directors.
G. Powers. The
enumeration and definition of particular powers of the Board of Directors included in the foregoing shall in no way be limited or restricted by reference to or inference from the terms of any other clause of this or any other Article of the charter
of the Corporation, or construed as or deemed by inference or otherwise in any manner to exclude or limit the powers conferred upon the Board of Directors under the General Corporation Law of Maryland as now or hereafter in force.
ARTICLE VI
Liability
The liability
of the directors and officers of the Corporation to the Corporation and its stockholders for money damages is hereby limited to the fullest extent permitted by
Section 5-349
of the Courts and Judicial
Proceedings Code of Maryland (or its successor) as such provisions may be amended from time to time.
12
ARTICLE VII
Indemnification
The Corporation shall indemnify (A) its directors and officers,
whether serving the Corporation or at its request any other entity, to the full extent required or permitted by the General Laws of the State of Maryland now or hereafter in force, including the advance of expenses under the procedures and to the
full extent permitted by law and (B) other employees and agents to such extent as shall be authorized by the Board of Directors or the Corporation’s
By-Laws
and be permitted by law. The foregoing
rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Directors may take such action as is necessary to carry out these indemnification provisions and is expressly
empowered to adopt, approve and amend from time to time such
By-Laws,
resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment
of the charter of the Corporation shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal.
ARTICLE VIII
Existence
The Corporation is to have perpetual existence.
IN WITNESS WHEREOF, the undersigned incorporator of Cedar Income Fund, Ltd. who executed the foregoing Articles of Incorporation hereby acknowledges the
same to be his act and further acknowledges that, to the best of his knowledge the matters and facts set forth therein are true in all material respects under the penalties of perjury.
Dated the 11th day of June, 1998.
|
|
|
|
|
/s/ James T. Cunningham
|
|
JAMES T. CUNNINGHAM
|
13
CERTIFICATE OF CORRECTION
TO
THE
ARTICLES OF INCORPORATION
OF
CEDAR INCOME FUND, LTD.,
a Maryland Corporation
Pursuant to the provisions of
Section 1-207
of the Maryland General Corporation Law, the undersigned
executes the following Certificate of Correction:
1. The title of the document being corrected is the “Articles of Incorporation of
Cedar Income Fund, Ltd.” (the “Articles”).
2. The name of the sole party to the Articles is James T. Cunningham, as sole
incorporator of Cedar Income Fund, Ltd., a Maryland corporation. 3. The date that the Articles were filed with the State of Maryland Department of Assessments and Taxation is June 12, 1998.
4. The erroneous provision of the Articles to be corrected is the proviso beginning on the 11th line of the definition of the term “Existing Holder
Limit” contained in Article IV paragraph B.4.(a) of the Articles (the “Proviso”) which currently reads as follows:
“provided, however, that the Existing Holding Limits for all Existing Holders when combined shall not exceed 85% of the Corporation’s Common
Stock.”
5. The foregoing erroneous Proviso is hereby corrected to read as follows:
“provided, however, that the Existing Holder Limits for all Existing Holders when combined shall not exceed 35% of the Corporation’s Common
Stock.”
IN WITNESS WHEREOF, the undersigned sole incorporator of Cedar Income Fund, Ltd., who executes the foregoing Certificate of
Correction, hereby acknowledges the same to be his act and further acknowledges that, to the best of his knowledge, the matters and facts set forth herein are true in all material respects under the penalties of perjury.
Dated the 24th day of July, 1998.
|
|
|
|
|
/s/ James T. Cunningham
|
|
JAMES T. CUNNINGHAM
|
14
|
|
|
|
|
|
|
|
|
STATE OF MARYLAND
|
|
|
|
PARRIS N. GLENDENING
|
|
|
|
DEPARTMENT OF
|
|
|
|
GOVERNOR
|
|
|
|
ASSESSMENTS AND TAXATION
|
|
[SEAL]
|
|
RONALD W. WINEHOLT
|
|
|
|
|
|
|
|
DIRECTOR
|
|
|
|
CHARTER DIVISION
|
|
|
|
PAUL B. ANDERSON
|
|
|
|
|
|
|
|
ADMINISTRATOR
|
|
|
ARTICLES OF AMENDMENT
(See instructions on previous page)
(1)
(2) Cedar Income Fund, Ltd. , a
Maryland corporation hereby certifies to the State Department of Assessments and Taxation of Maryland that:
(3) The charter of the
corporation is hereby amended as follows: by striking out
Article I of the articles of incorporation and inserting in lieu thereof the
following:
Article I
Name
The name of the Corporation shall be
Uni-Invest
(U.S.A.), Ltd. (the
“Corporation”).
This amendment of the charter of the corporation has been approved by
(4) The directors and shareholders.
We the undersigned President and Secretary swear under
penalties of perjury that the foregoing is a corporate act.
|
|
|
|
|
|
|
/s/ Stuart H. Widowski
|
|
|
|
/s/ Leo S. Ullman
|
|
SECRETARY
|
|
|
|
PRESIDENT
|
MAIL TO: STATE DEPARTMENT OF ASSESSMENTS & TAXATION
301 WEST PRESTON STREET, ROOM 809
BALTIMORE, MD 21201
PHONE:
401-767-1350
15
|
|
|
|
|
|
|
|
|
|
|
|
|
STATE OF MARYLAND
DEPARTMENT
OF
ASSESSMENTS AND TAXATION
CHARTER DIVISION
|
|
[SEAL]
|
|
PARRIS N. GLENDENING
GOVERNOR
RONALD W. WINEHOLT
DIRECTOR
PAUL B.
ANDERSON
ADMINISTRATOR
|
|
|
ARTICLES OF AMENDMENT
(See instructions on previous page)
(1)
(2)
Uni-Invest
(U.S.A.), Ltd.
, a Maryland corporation hereby certifies to the State Department of Assessments and Taxation of Maryland that:
(3) The charter of the corporation is hereby amended as follows: The name of the Corporation is hereby changed to “Cedar Income Fund, Ltd.”
This amendment of the charter of the corporation has been approved by
(4) The directors.
We the undersigned President and Secretary swear under penalties of perjury
that the foregoing is a corporate act.
|
|
|
|
|
|
|
|
|
/s/ Stuart H. Widowski
SECRETARY
Stuart
H. Widowski
|
|
|
|
/s/ Leo S. Ullman
PRESIDENT
Leo S. Ullman
|
|
|
MAIL TO: STATE DEPARTMENT OF ASSESSMENTS & TAXATION
301 WEST PRESTON STREET, ROOM 809
BALTIMORE, MD 21201
PHONE:
401-767-1350
16
ARTICLES OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF
CEDAR INCOME FUND, LTD.
Cedar Income Fund, Ltd., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of
Maryland, that:
1. Article I of the Articles of Incorporation of the Corporation, filed with the State Department of Assessments and Taxation
of Maryland on June 12, 1998, as heretofore amended, is hereby amended to read as follows:
ARTICLE I
Name
The name of the
Corporation shall be Cedar Shopping Centers, Inc. (the “Corporation”).
2. The amendment of the charter of the Corporation has been
approved by a majority of the entire Board of Directors since the amendment is limited to a change expressly authorized by
Section 2-605
of the Maryland General Corporation Law.
IN WITNESS WHEREOF, we the undersigned President and Secretary hereby swear under penalties of perjury that the foregoing Articles
of Amendment of Articles of Incorporation of Cedar Income Fund, Ltd. is a corporate act of Cedar Income Fund, Ltd. and have caused these Articles of Amendment to be executed and attested this
29
th
day of July, 2003.
CEDAR INCOME FUND, LTD.
By:
Leo S. Ullman, President
Attest:
Stuart H. Widowsky,
Secretary
17
ARTICLES OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF
CEDAR SHOPPING CENTERS, INC.
Cedar Shopping Centers, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
1. The Articles of Incorporation of the Corporation, filed with the State Department of Assessments and Taxation of
Maryland on June 12, 1998, as amended, are hereby amended as follows:
(i) The definition of “Ownership Limit” in subparagraph
B(4)(a) of Article IV shall be deleted in its entirety and replaced with the following:
“Ownership Limit” shall mean 9.9% of the
outstanding Common Stock of the Corporation, and after any adjustment as set forth in subparagraph B(4)(i) of this Article IV, shall mean such greater percentage.
(ii) Clause (i) of the definition of “Existing Holder Limit” in subparagraph B(4)(a) of Article IV shall be deleted in its entirety and replaced with the following:
(i) for any Existing Holder who is an Existing Holder by virtue of clause (i) of the definition thereof, shall mean, initially, the percentage of
Common Stock Beneficially Owned by such Person immediately after the Public Offering, and after any adjustment pursuant to subparagraph B(4)(i) of this Article IV, shall mean such percentage of the outstanding Common Stock as so adjusted.
(iii) Section B(4)(j)(i) of Article IV shall be deleted in its entirety and replaced with the following:
(i) Prior to the Restriction Termination Date, neither the Ownership Limit nor any Existing Holder Limit may be increased (nor may any additional
Existing Holder Limit be created) if, after giving effect to such increase (or creation), five persons who are Beneficial Owners of Common Stock (including all of the then Existing Holders) could (taking into account the Ownership Limit and the
Existing Holder Limit) Beneficially Own, in the aggregate, more than 49.5% of the outstanding Common Stock.
(iv) The following definition
shall be added to Section B(4)(a) of Article IV:
“Public Offering” shall mean the public offering, if any, of the Company’s
common stock that is consummated prior to June 30, 2004.
18
(v) Section C of Article V shall be deleted in its entirety and replaced with the following:
C. At each annual meeting of the stockholders of the Corporation, the date of which shall be fixed by or pursuant to the
By-Laws
of the Corporation, the successors of the class of directors whose terms expire at that meeting shall be elected to hold office for a term of one year and until such director’s earlier resignation
or removal; provided, however, each director elected at the annual meetings of the Corporation held in 2001 and 2002 shall serve for the full three-year term to which such director was elected or until such director’s earlier resignation or
removal. No election of directors need be by written ballot. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
2. The amendments to the Articles of Incorporation of the Corporation have been advised by the Board of Directors and approved by the shareholders of at least
two-thirds
of the shares of the Corporation’s Common Stock entitled to vote at the Corporation’s Annual Meeting held on October 9, 2003.
19
IN WITNESS WHEREOF, we the undersigned President and Secretary hereby swear under penalties of perjury that
the adoption of the foregoing Articles of Amendment of Articles of Incorporation of Cedar Shopping Centers, Inc. is a corporate act of Cedar Shopping Centers, Inc. and that we have caused these Articles of Amendment to be executed and attested this
2nd day of October, 2003.
CEDAR SHOPPING CENTERS, INC.
By:
Leo
S. Ullman, President
Attest:
Stuart H. Widowsky, Secretary
20
ARTICLES OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF
CEDAR SHOPPING CENTERS, INC.
Cedar Shopping Centers, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
1. The Articles of Incorporation of the Corporation, filed with the State Department of Assessments and Taxation of
Maryland on June 12, 1998, as amended, are hereby amended as follows:
(i) The first paragraph of Article IV shall be deleted in its
entirety and replaced with the following:
Capital Stock
A. Authorized Shares. The total number of shares of all classes of capital stock that the Corporation shall have authority to issue is 55 million shares, consisting of 50 million shares of
Common Stock with a par value of $.06 per share (the “Common Stock”), amounting in the aggregate to par value of $3,000,000, and 5 million shares of Preferred Stock with a par value of $.01 per share (the “Preferred Stock”),
amounting in the aggregate to par value of $50,000.
The amendment to the Articles of Incorporation of the Corporation has been advised by the
Board of Directors and approved by the holders of at least
two-thirds
of the shares of the Corporation’s Common Stock entitled to vote at the Corporation’s Annual Meeting held on October 9,
2003.
21
IN WITNESS WHEREOF, we the undersigned President and Secretary hereby swear under penalties of perjury that
the adoption of the foregoing Articles of Amendment of Articles of Incorporation of Cedar Shopping Centers, Inc. is a corporate act of Cedar Shopping Centers, Inc. and that we have caused these Articles of Amendment to be executed and attested this
9th day of October, 2003.
CEDAR SHOPPING CENTERS, INC.
|
|
|
|
|
By:
|
|
/s/ Leo S. Ullman
|
|
|
|
Leo S. Ullman, President
|
Attest:
|
|
|
/s/ Stuart H. Widowski
|
|
Stuart H. Widowsky, Secretary
|
22
CEDAR SHOPPING CENTERS, INC.
ARTICLES SUPPLEMENTARY
8 7/8% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
Cedar Shopping Centers, Inc., a
Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST : Under a power contained in Article IV of the Articles of Incorporation of the Corporation, as amended and supplemented (the “Charter”),
the Board of Directors of the Corporation (the “Board of Directors”), by resolution duly adopted at a meeting duly called and held on July 19, 2004 (the “Board Resolutions”), and the Pricing Committee of the Board of
Directors established by the Board Resolutions, by resolution duly adopted at a meeting duly called and held on July 23, 2004, classified and designated 2,350,000 shares (the “Shares”) of Preferred Stock (as defined in the Charter) as
shares of 8?% Series A Cumulative Redeemable Preferred Stock, with the preferences, conversions and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption
of shares of stock as follows and provided for the issuance thereof. Upon any restatement of the Charter, Sections 1 through 13 of this Article FIRST shall become part of Article IV of the Charter, with such changes in enumeration as are necessary
to complete such restatement.
(1) Designation and Number. A series of shares of Preferred Stock, designated as the “8 7/8% Series A
Cumulative Redeemable Preferred Stock” (the “Series A Preferred Stock”), is hereby established. The number of shares of Series A Preferred Stock shall be 2,350,000. The par value of the Series A Preferred Stock shall be $.01 per
share.
(2) Rank. The Series A Preferred Stock will, with respect to distribution rights and rights upon liquidation, dissolution or winding
up of the Corporation, rank (a) senior to all classes or series of Common Stock (as defined in the Charter), and to all equity securities the terms of which provide that such equity securities shall rank junior to the Series A Preferred Stock;
(b) on parity with all equity securities issued by the Corporation the terms of which specifically provide that such equity securities rank on parity with the Series A Preferred Stock; and (c) junior to all equity securities issued by the
Corporation the terms of which specifically provide that such equity securities rank senior to the Series A Preferred Stock. The term “equity securities” shall not include convertible debt securities.
(3) Distributions.
(a) Holders of Series A
Preferred Stock shall be entitled to receive, when and if declared by the Board of Directors, out of funds legally available for payment of distributions, cumulative preferential cash distributions at the rate of 8 7/8% of the liquidation preference
per annum (which is equivalent to a fixed annual amount of $2.21875 per share of Series A Preferred Stock). Such distributions shall accrue and cumulate from the date of original issuance (July 28, 2004) and shall be payable quarterly in arrears on
the 20th day of February, May, August and November of each year or, if not a business day, the next succeeding business day (each a “Distribution Payment Date”). The first distribution on the Series A Preferred Stock
23
shall be paid on November 20, 2004, will be for more than a full quarter and will reflect distributions
accumulated from the date of original issuance through November 20, 2004. Any distribution payable on the Series A Preferred Stock for any partial distribution period shall be prorated and computed on the basis of a
360-day
year consisting of twelve
30-day
months. Distributions shall be payable to holders of record as they appear in the stock records of the Corporation at the close of
business on the applicable distribution record date, which shall be a date designated by the Board of Directors for the payment of distributions that is not more than 60 nor less than 10 calendar days immediately preceding such Distribution Payment
Date (each, a “Distribution Record Date”).
(b) No distribution on the Series A Preferred Stock shall be authorized or declared or
paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness or any other of the Corporation’s preferred stock, prohibits
such authorization, declaration, payment or setting apart for payment or provides that such authorization, declaration, payment or setting apart for payment would constitute a breach or default thereunder, or if such authorization, declaration,
payment or setting apart for payment shall be restricted or prohibited by law.
Notwithstanding anything to the contrary contained herein,
distributions on the Series A Preferred Stock shall accrue and cumulate whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such distributions and whether or not such distributions are
declared by the Board of Directors. Accrued but unpaid distributions on the Series A Preferred Stock shall cumulate as of the Distribution Payment Date on which they first become payable or on the date of redemption, as the case may be. No interest
shall be payable in respect of any distribution on the Series A Preferred Stock that may be in arrears.
(c) Except as provided in the
following sentence, if any Series A Preferred Stock are outstanding, no distributions, other than distributions in kind of the Corporation’s Common Stock or other shares of the Corporation’s equity securities ranking junior to the Series A
Preferred Stock as to distributions and upon liquidation, may be declared or paid or set apart for payment, and no other distribution may be declared or made upon, the Corporation’s Common Stock or any other shares of equity securities of the
Corporation of any other class or series ranking, as to distributions and upon liquidation, on parity with or junior to the Series A Preferred Stock unless full cumulative distributions have been or contemporaneously are declared and paid or
declared and a sum sufficient is set apart for such payment on the Series A Preferred Stock for all past distribution periods and the then current distribution period. When distributions are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Series A Preferred Stock and all other equity securities ranking on parity, as to distributions, with the Series A Preferred Stock, all distributions declared upon the Series A Preferred Stock and any other
equity securities ranking on parity, as to distributions, with the Series A Preferred Stock shall be authorized pro rata so that the amount of distributions authorized per share of Series A Preferred Stock and each such other equity security shall
in all cases bear to each other the same ratio that accrued distributions per share of Series A Preferred Stock and such other equity security (which shall not include any accumulation in respect of unpaid distributions for prior distribution
periods if such other equity securities do not have a cumulative distribution) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on Series A Preferred Stock
which may be in arrears.
24
(d) Except as provided in clause (c), unless full cumulative distributions on the Series A Preferred Stock
have been or contemporaneously are declared and paid or declared and a sum sufficient is set apart for payment for all past distribution periods and the then current distribution period, no Common Stock or any other shares of equity securities of
the Corporation ranking junior to or on parity with the Series A Preferred Stock as to distributions or upon liquidation shall be redeemed, purchased or otherwise acquired for any consideration (or any monies be paid to or made available for a
sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for Common Stock or other shares of equity securities of the Corporation ranking junior to the Series A Preferred Stock as to distributions
and amounts upon liquidation). The foregoing shall not prohibit any redemption, purchase or other acquisition by the Corporation of any class or series of equity securities of the Corporation for the purpose of enforcing restrictions on ownership
contained in the Corporation’s Charter or preserving the Corporation’s status as a real estate investment trust.
(e) Holders of
Series A Preferred Stock shall not be entitled to any distribution, whether payable in cash, property or shares, in excess of full cumulative distributions on the Series A Preferred Stock as described above. Any distribution payment made on the
Series A Preferred Stock, including any capital gain distributions, shall first be credited against the earliest accrued but unpaid distribution due with respect to the Series A Preferred Stock which remains payable.
(f) If, for any taxable year, the Corporation elects to designate as a “capital gain dividend” (as defined in Section 857 of the Code) any
portion (the “Capital Gains Amount”) of the dividends (as determined for federal income tax purposes) paid or made available for the year to holders of all series or classes of the Corporation’s stock (the “Total
Dividends”), then, except as otherwise required by applicable law, that portion of the Capital Gains Amount that shall be allocable to the holders of Series A Preferred Stock shall be in proportion to the amount that the total dividends (as
determined for federal income tax purposes) paid or made available to the holders of the Series A Preferred Stock for the year bears to the Total Dividends. Except as otherwise required by applicable law, the Corporation will make a similar
allocation with respect to any undistributed long-term capital gains of the Corporation which are to be included in its stockholders’ long-term capital gains, based on the allocation of the Capital Gains Amount which would have resulted if such
undistributed long-term capital gains has been distributed as “capital gains dividends” by the Corporation to its stockholders.
(4)
Liquidation Preference.
(a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation (referred
to herein sometimes as a “liquidation”), the holders of Series A Preferred Stock then outstanding shall be entitled to receive out of the assets of the Corporation legally available for distribution to stockholders (after payment or
provision for payment of all debts and other liabilities of the Corporation) the sum of (i) the liquidation
25
preference of $25.00 per share, (ii) the applicable premium per share (expressed as a percentage of the
liquidation preference of $25.00 per share) as set forth in the table below during the twelve-month period beginning on July 28 of each year and (c) an amount equal to any accrued and unpaid distributions (whether or not declared) to the
date of payment, before any distribution of assets is made to holders of Common Stock (as defined in the Charter) or any equity securities that the Corporation may issue that rank junior to the Series A Preferred Stock as to liquidation rights.
|
|
|
|
|
|
|
12-MONTH
PERIOD
|
|
APPLICABLE PREMIUM
|
|
|
July 28, 2004 to July 27, 2005
|
|
|
5
|
%
|
|
July 28, 2005 to July 27, 2006
|
|
|
4
|
%
|
|
July 28, 2006 to July 27, 2007
|
|
|
3
|
%
|
|
July 28, 2007 to July 27, 2008
|
|
|
2
|
%
|
|
July 28, 2008 to July 27, 2009
|
|
|
1
|
%
|
|
July 28, 2009 and thereafter
|
|
|
0
|
|
(b) If, upon any such voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the assets of
the Corporation are insufficient to make full payment to holders of the Series A Preferred Stock and any shares of other classes or series of equity securities of the Corporation ranking on parity with the Series A Preferred Stock as to liquidation
rights, then the holders of the Series A Preferred Stock and all other such classes or series of equity securities ranking on parity with the Series A Preferred Stock as to liquidation rights shall share ratably in any distribution of assets in
proportion to the full liquidating distributions to which they would otherwise be respectively entitled.
(c) Written notice of any such
liquidation, dissolution or winding up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage
pre-paid,
not less than 30 nor more than 60 calendar days immediately preceding the payment date stated therein, to each record holder of the Series A Preferred Stock at the respective addresses of such holders as
the same shall appear on the share transfer records of the Corporation.
(d) After payment of the full amount of the liquidating distributions
to which they are entitled, the holders of Series A Preferred Stock shall have no right or claim to any of the remaining assets of the Corporation.
(e) None of a consolidation or merger of the Corporation with or into another entity, the merger of another entity with or into the Corporation, a statutory share exchange by the Corporation or a sale,
lease, transfer or conveyance of all or substantially all of the Corporation’s assets or business shall be considered a liquidation, dissolution or winding up of the Corporation.
(f) In determining whether a distribution (other than upon voluntary or involuntary dissolution) by dividend, redemption or other acquisition of shares of the Corporation or otherwise is permitted under
Maryland law, amounts that would be needed, if the Corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of the holders of Series A Preferred Stock will not be added to the
Corporation’s total liabilities.
26
(5) Redemption.
(a) Except as otherwise set forth in this Section 5 and in Section 8, the Series A Preferred Stock is not redeemable prior to July 28, 2009, except that the Corporation will be entitled to
redeem, purchase or acquire shares of Series A Preferred Stock in order to ensure that the Corporation remains qualified as a REIT for federal income tax purposes.
(b) On or after July 28, 2009 the Corporation, at its option, upon giving notice as provided below, may redeem the Series A Preferred Stock, in whole or from time to time in part, for cash, at a
redemption price of $25.00 per share, plus all accrued and unpaid distributions on such Series A Preferred Stock to the date of redemption, whether or not declared (the “Redemption Right”).
(c) If fewer than all of the outstanding shares of Series A Preferred Stock are to be redeemed pursuant to the Redemption Right, the shares to be
redeemed shall be selected pro rata (as nearly as practicable without creating fractional shares) or by lot or in such other equitable method prescribed by the Board of Directors. If such redemption is to be by lot and, as a result of such
redemption, any holder of Series A Preferred Stock would become a holder of a number of Series A Preferred Stock in excess of the Ownership Limit because such holder’s shares of Series A Preferred Stock were not redeemed, or were only redeemed
in part, then, except as otherwise provided in the Charter, the Corporation shall redeem the requisite number of shares of Series A Preferred Stock of such holder such that no holder will hold in excess of the Ownership Limit subsequent to such
redemption.
(d) Notwithstanding anything to the contrary contained herein, unless full cumulative distributions on all shares of Series A
Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient is set apart for payment for all past distribution periods and the then current distribution period, no shares of Series A Preferred Stock shall be
redeemed unless all outstanding shares of Series A Preferred Stock are simultaneously redeemed. In addition, unless full cumulative distributions on all shares of Series A Preferred Stock have been or contemporaneously are declared and paid or
declared and a sum sufficient is set apart for payment for all past distribution periods and the then current distribution period, the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Series A Preferred Stock
or any other shares of equity securities of the Corporation ranking junior to or on parity with the Series A Preferred Stock as to distributions or upon liquidation (except by conversion into or exchange for shares of equity securities of the
Corporation ranking junior to the Series A Preferred Stock as to distributions and upon liquidation). The restrictions in this Section 5 on redemptions, purchases and other acquisitions shall not prevent the redemption, purchase or acquisition
by the Corporation of Preferred Stock of any series pursuant to Article IV of the Charter or Section 5(a) hereof, or otherwise in order to ensure that the Corporation remains qualified as a REIT for United States federal income tax purposes, or
the purchase or acquisition of Series A Preferred Stock pursuant to a purchase or exchange offer made on the same terms to all holders of the Series A Preferred Stock.
27
(e) Immediately prior to any redemption of shares of Series A Preferred Stock, the Corporation shall pay, in
cash, any accrued and unpaid distributions to the redemption date, whether or not declared, unless a redemption date falls after a Distribution Record Date and prior to the corresponding Distribution Payment Date, in which case each holder of Series
A Preferred Stock at the close of business on such Distribution Record Date shall be entitled to the distribution payable on such shares on the corresponding Distribution Payment Date notwithstanding the redemption of such shares before the
Distribution Payment Date. Except as provided in the previous sentence, the Corporation shall make no payment or allowance for unpaid distributions, whether or not in arrears, on Series A Preferred Stock for which a notice of redemption has been
given.
(f) The following provisions set forth the procedures for redemption.
(i) Notice of redemption will be mailed by the Corporation, postage prepaid, no less than 30 nor more than 60 calendar days immediately preceding the redemption date, addressed to the respective holders
of record of the Series A Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the Corporation. No failure to give such notice or any defect thereto or in the mailing thereof shall affect the
validity of the proceedings for the redemption of any Series A Preferred Stock except as to the holder to whom notice was defective or not given.
(ii) In addition to any information required by law or by the applicable rules of any exchange upon which the Series A Preferred Stock may be listed or admitted to trading, each notice shall state:
(A) the redemption date; (B) the redemption price; (C) the number of Series A Preferred Stock to be redeemed; (D) the place or places where the holders of Series A Preferred Stock may surrender certificates for payment of the
redemption price; and (E) that distributions on the Series A Preferred Stock to be redeemed will cease to accrue on the redemption date. If less than all of the Series A Preferred Stock held by any holder are to be redeemed, the notice mailed
to each holder shall also specify the number of Series A Preferred Stock held by such holder to be redeemed.
(iii) On or after the redemption
date, each holder of Series A Preferred Stock to be redeemed shall present and surrender the certificates representing his Series A Preferred Stock to the Corporation at the place designated in the notice of redemption and thereupon the redemption
price of such shares (including all accrued and unpaid distributions up to the redemption date) shall be paid to or on the order of the person whose name appears on such certificate representing Series A Preferred Stock as the owner thereof and each
surrendered certificate shall be canceled. If fewer than all the shares represented by any such certificate representing Series A Preferred Stock are to be redeemed, a new certificate shall be issued representing the unredeemed shares.
28
(iv) From and after the redemption date (unless the Corporation defaults in payment of the redemption
price), all distributions on the Series A Preferred Stock designated for redemption and all rights of the holders thereof, except the right to receive the redemption price thereof and all accrued and unpaid distributions up to the redemption date,
shall terminate with respect to such shares and such shares shall not thereafter be transferred (except with the consent of the Corporation) on the Corporation’s stock transfer records, and such shares shall not be deemed to be outstanding for
any purpose whatsoever. At its election, the Corporation, prior to a redemption date, may irrevocably deposit the redemption price (including accrued and unpaid distributions to the redemption date) of the Series A Preferred Stock so called for
redemption in trust for the holders thereof with a bank or trust company, in which case the redemption notice to holders of the Series A Preferred Stock to be redeemed shall (A) state the date of such deposit, (B) specify the office of
such bank or trust company as the place of payment of the redemption price and (C) require such holders to surrender the certificates representing such shares at such place on or about the date fixed in such redemption notice (which may not be
later than the redemption date) against payment of the redemption price (including all accrued and unpaid distributions to the redemption date). Any monies so deposited which remain unclaimed by the holders of the Series A Preferred Stock at the end
of two years after the redemption date shall be returned by such bank or trust company to the Corporation.
(g) Any Series A Preferred Stock
that shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued Preferred Stock, without designation as to series until such shares are once more designated as part of a particular series by the
Board of Directors.
(6) Voting Rights.
(a) Holders of the Series A Preferred Stock shall not have any voting rights, except as set forth below.
Whenever distributions on the Series A Preferred Stock are in arrears for six or more consecutive quarterly periods (a “Preferred Distribution Default”), the holders of Series A Preferred Stock
(voting together as a single class with all other equity securities of the Corporation upon which like voting rights have been conferred and are exercisable (“Parity Preferred Stock”)) shall be entitled to elect a total of two additional
directors to the Corporation’s Board of Directors (the “Preferred Stock Directors”) at a special meeting called by the holders of record of at least 10% of the outstanding shares of Series A Preferred Stock (unless such request is
received less than 90 calendar days before the date fixed for the next annual or special meeting of stockholders) or, if the request for a special meeting is received by the Corporation less than 90 calendar days before the date fixed for the next
annual or special meeting of stockholders, at the next annual meeting of stockholders, and at each subsequent annual meeting until all distributions accrued on the Series A Preferred Stock for the past distribution periods and the then current
distribution period shall have been fully paid or declared and a sum sufficient for the payment thereof set aside for payment. On any matter in which the holders of Series A Preferred Stock are entitled to vote (as expressly provided herein or as
may be required by law), including any action by written consent, each share of Series A Preferred Stock shall have one vote per share, except that when shares of any other series of preferred stock of the Corporation shall have the right to vote
with the Series A Preferred Stock as a single class on any matter, then the Series A Preferred Stock and such other series shall have with respect to such matters one vote per $25.00 of stated liquidation preference.
29
(b) If and when all accrued distributions and the distribution for the then current distribution period on
the Series A Preferred Stock shall have been paid in full or declared and a sum sufficient for the payment thereof set aside for payment in full, the holders of Series A Preferred Stock shall be divested of the voting rights set forth in clause
(a) above (subject to revesting in the event of each and every Preferred Distribution Default) and, if all accrued distributions and the distribution for the then current distribution period have been paid in full or declared by the Board of
Directors and set aside for payment in full on all other series of Parity Preferred Stock upon which like voting rights have been conferred and are exercisable, the term of office of each Preferred Stock Director so elected shall terminate. Any
Preferred Stock Director may be removed at any time with or without cause by the vote or consent of, and shall not be removed otherwise than by the vote of, the holders of a majority of the outstanding Series A Preferred Stock when they have the
voting rights set forth in clause (a) above and all other series of Parity Preferred Stock (voting as a single class). So long as a Preferred Distribution Default shall continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in office, or if none remains in office, by a vote of the holders of a majority of the outstanding Series A Preferred Stock when they have the voting rights set forth in clause
(a) above and all other series of Parity Preferred Stock (voting as a single class). The Preferred Stock Directors shall each be entitled to one vote per director on any matter.
(c) So long as any Series A Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least
two-thirds
of the Series A Preferred Stock outstanding at the time, given in person or by proxy, either in writing or at a meeting (such series voting separately as a class), (i) authorize, create or
increase the authorized or issued amount of any class or series of equity securities ranking senior to the outstanding Series A Preferred Stock with respect to the payment of distributions or the distribution of assets upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation or reclassify any authorized equity securities of the Corporation into any such senior equity securities, or create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such senior equity securities; or (ii) amend, alter or repeal the provisions of the Charter (including these Articles Supplementary), whether by merger or consolidation (in either case, an “Event”)
or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the Series A Preferred Stock; provided, however, that with respect to any such amendment, alteration or repeal of the provisions of the
Charter (including these Articles Supplementary) upon the occurrence of an Event, so long as shares of the Series A Preferred Stock remain outstanding with the terms thereof materially unchanged in any adverse respect, taking into account that, upon
the occurrence of an Event, the Corporation may not be the surviving entity and such surviving entity may thereafter be the issuer of the Series A Preferred Stock, the occurrence of any such Event shall not be deemed to materially and adversely
affect the rights, preferences or voting powers of the Series A Preferred Stock; and provided further that any increase in the amount of authorized Series A Preferred Stock or the creation or issuance of or increase in the amount of any other class
or series of the Corporation’s equity securities, in each case ranking on parity with or junior to the Series A Preferred Stock with respect to the payment of distributions and the distribution of assets upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, shall not be deemed to materially and adversely affect the rights, preferences, privileges or voting powers of the Series A Preferred Stock.
30
(d) The foregoing voting provisions shall not apply if, at or prior to the time when the action with respect
to which such vote or consent would otherwise be required shall be effected, all outstanding Series A Preferred Stock shall have been redeemed or called for redemption upon proper notice and sufficient funds shall have been deposited in trust to
effect such redemption.
(7) Conversion. The Series A Preferred Stock is not convertible into or exchangeable for any other property or
securities of the Corporation.
(8) Ownership Limitations. The provisions of this Section 8 shall apply with respect to the limitations
on the ownership and acquisition of shares of Series A Preferred Stock.
(a) Definitions
For the purposes of this Section 8, the following terms shall have the following meanings:
“Act” shall mean the General Corporation Law of Maryland.
“Beneficial
Ownership” shall mean ownership of Series A Preferred Stock by a Person who would be treated as an owner of such shares of Series A Preferred Stock either directly or constructively through the application of Section 544 of the Code, as
modified by Section 856(h) of the Code. The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have the correlative meanings.
“Charitable Trust” shall mean the trust created pursuant to subparagraph 8(c)(i) of this Section 8.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time. All section references to the Code shall include any successor provisions thereof as may be adopted from time
to time.
“Constructive Ownership” shall mean ownership of Series A Preferred Stock by a Person who would be treated as an owner of
such shares of Series A Preferred Stock either directly or constructively through the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Owner,” “Constructively
Owns” and “Constructively Owned” shall have the correlative meanings.
“Holder” shall mean the record holder of
shares of Series A Preferred Stock, or in the case of shares held by a Purported Record Transferee, the Charitable Trust.
“Initial
Date” shall mean the date upon which the Corporation issues the Series A Preferred Stock.
31
“IRS” shall mean the United States Internal Revenue Service.
“Market Price” shall mean the last reported sales price reported on the New York Stock Exchange of Series A Preferred Stock on the trading day
immediately preceding the relevant date, or if the Series A Preferred Stock is not then traded on the New York Stock Exchange, the last reported sales price of the Series A Preferred Stock on the trading day immediately preceding the relevant date
as reported on any exchange or quotation system over which the Series A Preferred Stock may be traded, or if the Series A Preferred Stock is not then traded over any exchange or quotation system, then the market price of the Series A Preferred Stock
on the relevant date as determined in good faith by the Board of Directors of the Corporation.
“Ownership Limit” shall mean 9.9% of
the outstanding Series A Preferred Stock of the Corporation, and after any adjustment as set forth in subparagraph 8(i) of this Section 8, shall mean such greater percentage.
“Partner” shall mean any Person owning Units.
“Partnership” shall mean Cedar
Shopping Centers Partnership, L.P., a Delaware limited partnership.
“Partnership Agreement” shall mean the Agreement of Limited
Partnership of the Partnership, of which the Corporation is the sole general partner, as amended, as such agreement may be further amended from time to time.
“Person” shall mean an individual, corporation, partnership, estate, trust, a portion of a trust permanently set aside for or to be used exclusively for the purposes described in
Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity and also includes a group as that term is used for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended; but does not include an underwriter which participates in a public offering of the Series A Preferred Stock provided that the ownership of Series A Preferred Stock by such underwriter would not result in
the Corporation failing to qualify as a REIT.
“Purported Transferee” shall mean, with respect to any purported Transfer (or other
event) which results in a violation of subparagraph 8(b) of this Section 8, the purported beneficial transferee or owner for whom the Purported Record Transferee would have acquired or owned shares of Series A Preferred Stock, if such Transfer
had been valid under such subparagraph.
“Purported Record Transferee” shall mean, with respect to any purported Transfer which
results in a violation of subparagraph 8(b) of this Section 8, the record holder of the Series A Preferred Stock if such Transfer had been valid under such subparagraph.
“REIT” shall mean a Real Estate Investment Trust under Section 856 of the Code.
32
“Restriction Termination Date” shall mean the first day on which the Board of Directors of the
Corporation determines that it is no longer in the best interests of the Corporation to attempt to, or continue to, qualify as a REIT.
“Transfer” shall mean any sale, issuance, transfer, gift, assignment, devise or other disposition of Series A Preferred Stock as well as any
other event that causes any Person to Beneficially Own or Constructively Own Series A Preferred Stock (including (i) the granting of any option or entering into any agreement for the sale, transfer or other disposition of Series A Preferred
Stock or (ii) the sale, transfer. assignment or other disposition of any securities or rights convertible into or exchangeable for Series A Preferred Stock), whether voluntary or involuntary, whether of record or beneficially or Beneficially or
Constructively (including but not limited to transfers of interests in other entities which result in changes in Beneficial or Constrictive Ownership of Series A Preferred Stock), and whether by operation of law or otherwise.
“Trustee” shall mean the Corporation as trustee for the Charitable Trust, and any successor trustee appointed by the Corporation.
“Units” shall mean the units into which partnership interests of the Partnership are divided, and as the same may be adjusted, as provided in
the Partnership Agreement.
(b) Restriction on Ownership and Transfer.
(i) Except as provided in subparagraph 8(k) of this Section 8, from the Initial Date and prior to the Restriction Termination Date, no Person shall Beneficially Own shares of Series A Preferred Stock
in excess of the Ownership Limit.
(ii) Except as provided in subparagraph 8(k) of this Section 8, from the Initial Date and prior to the
Restriction Termination Date, any Transfer that, if effective, would result in any Person Beneficially Owning Series A Preferred Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of such shares of Series A Preferred
Stock which would be otherwise Beneficially Owned by such Person in excess of the Ownership Limit; and the Purported Transferee shall acquire no rights in such shares of Series A Preferred Stock.
(iii) Except as provided in subparagraph 8(k) of this Section 8, from the Initial Date and prior to the Restriction Termination Date, any Transfer
that, if effective, would result in the Series A Preferred Stock being beneficially owned by less than 100 Persons (determined without reference to any rules of attribution) shall be void ab initio as to the Transfer of such shares of Series A
Preferred Stock which would be otherwise beneficially owned by the transferee; and the intended transferee shall acquire no rights in such shares of Series A Preferred Stock.
(iv) Notwithstanding any other provisions contained in this Section 8, from the Initial Date and prior to the Restriction Termination Date, any Transfer or other event that, if effective, would
result in the Corporation being “closely held” within the meaning of Section 856(h) of the Code, or would otherwise result in the Corporation failing to qualify as a REIT (including, but not limited to, a Transfer or other event that
would result in the Corporation owning (directly or Constructively) an interest in a tenant that is described in Section
33
856(d)(2)(B) of the Code if the income derived by the Corporation from such tenant would cause the
Corporation to fail to satisfy, any of the gross income requirements of Section 856(c) of the Code), shall be void ab initio as to the Transfer of the shares of Series A Preferred Stock which would cause the Corporation to be “closely
held” within the meaning of Section 856(h) of the Code or would otherwise result in the Corporation failing to qualify as a REIT; and the intended transferee or owner or Constructive or Beneficial Owner shall acquire or retain no rights in
such shares of Series A Preferred Stock.
(c) Effect of Transfer in Violation of Subparagraph 8(b).
(i) If, notwithstanding the other provisions contained in this Section 8, at any time after the Initial Date and prior to the Restriction
Termination Date, there is a purported Transfer, or change in the capital structure of the Corporation, or other event such that one or more of the restrictions on ownership and transfers described in subparagraph 8(b) above has been violated, then
the shares of Series A Preferred Stock being Transferred (or in the case of an event other than a Transfer, the shares owned or Constructively Owned or Beneficially Owned) which would cause one or more of the restrictions on ownership or transfer to
be violated (rounded up to the nearest whole share) (the “Trust Shares”), shall automatically be transferred to the Corporation, as Trustee of a trust (the “Charitable Trust”) for the exclusive benefit of The American Cancer
Society (the “Designated Charity”), an organization described in Section 170(b)(1)(A ) and 170(c) of the Code. The Purported Transferee shall have no rights in such Trust Shares.
(ii) The Corporation, as Trustee of the Charitable Trust, may transfer the shares held in such trust to a Person whose ownership of the shares will not
result in a violation of the ownership restrictions (a “Permitted Transferee”). If such a transfer is made, the interest of the Designated Charity will terminate and proceeds of the sale will be payable to the Purported Transferee and to
the Designated Charity. The Purported Transferee will receive the lesser of (1) the price paid by the Purported Transferee for the shares or, if the Purported Transferee did not give value for the shares, the Market Price of the shares on the
day of the event causing the shares to be held in trust, and (2) the price per share received by the Corporation, as Trustee, from the sale or other disposition of the shares held in trust. The Designated Charity will receive any proceeds in
excess of the amount payable to the Purported Transferee. The Purported Transferee will not be entitled to designate a Permitted Transferee.
(iii) All stock held in the Charitable Trust will be deemed to have been offered for sale to the Corporation or its designee for a
90-day
period, at the lesser of the price paid for that stock by the Purported Transferee and the Market Price on the date that the Corporation accepts the offer. This period will commence on the date of the
violative transfer, if the Purported Transferee gives notice to the Corporation of the transfer, or the date that the Board of Directors of the Corporation determines that a violative transfer occurred, if no such notice is provided.
(iv) Any dividend or distribution paid prior to the discovery by the Corporation that shares of Series A Preferred Stock have been transferred in
violation of subparagraph 8(b) of this Section 8, shall be repaid to the Corporation upon demand and shall be held in trust for the Designated Charity. Any dividend or distribution declared but unpaid shall be rescinded as void ab initio with
respect to such shares of stock.
34
(v) In the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any
distribution of the assets of, the Corporation, the Designated Charity shall be entitled to receive, ratably with each other holder of Series A Preferred Stock, that portion of the assets of the Corporation available for distribution to its
stockholders as the number of Trust Shares bears to the total number of shares of Series A Preferred Stock then outstanding (including the Trust Shares). The Corporation, as Trustee, or if the Corporation shall have been dissolved, any trustee
appointed by the Corporation prior to its dissolution, shall distribute to the Designated Charity, when determined (or if not determined, or only partially determined, ratably to the other holders of Series A Preferred Stock who have been determined
and the Designated Charity), any such assets received in respect of the Trust Shares in any liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation.
(vi) The Purported Transferee will not be entitled to vote any Series A Preferred Stock it attempts to acquire, and any stockholder vote will be rescinded if a Purported Transferee votes and the
stockholder vote would have been decided differently if such Purported Transferee’s vote was not counted.
(d) Remedies for Breach. If
the Board of Directors or its designees shall at any time determine in good faith that a Transfer or other event has taken place in violation of subparagraph 8(b) of this Section 8 or that a Person intends to acquire or has attempted to acquire
beneficial ownership (determined without reference to any rules of attribution), Beneficial Ownership or Constructive Ownership of any shares of Series A Preferred Stock in violation of subparagraph 8(b) of this Section 8, the Corporation shall
inform the Purported Transferee of its obligations pursuant to this Section 8, including such Purported Transferee’s obligations to pay over to the Charitable Trust any and all dividends received with respect to the Trust Shares. In
addition, the Board of Directors or its designees shall take such action as it deems advisable to refuse to give effect or to prevent such Transfer, including, but not limited to, refusing to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer and to recover any dividend erroneously paid and declaring any votes erroneously cast to be retroactively invalid; provided, however, that any Transfers (or, in the case of events other
than a Transfer, ownership or Constructive Ownership or Beneficial Ownership) in violation of subparagraph 8(b) of this Section 8 shall automatically result in a transfer to the Charitable Trust as described in subparagraph 8(c), irrespective
of any action (or
non-action)
by the Board of Directors.
(e) Notice of Restricted Transfer. Any
Person who acquires or attempts to acquire shares of Series A Preferred Stock in violation of subparagraph 8(b) of this Section 8, or any Person who is a Purported Transferee, shall immediately give written notice to the Corporation of such
event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such Transfer or attempted Transfer on the Corporation’s status as a REIT.
35
(f) Owners Required To Provide Information. From the Initial Date and prior to the Restriction Termination
Date each Person who is a beneficial owner or Beneficial Owner or Constructive Owner of Series A Preferred Stock and each Person (including the stockholder of record) who is holding Series A Preferred Stock for a Beneficial Owner or Constructive
Owner shall provide to the Corporation such information that the Corporation may request, in good faith, in order to determine the Corporation’s status as a REIT.
(g) Remedies Not Limited. Nothing contained in this Section 8 shall limit the authority of the Board of Directors to take such other action as it deems necessary or advisable to protect the
Corporation and the interests of its stockholders by preservation of the Corporation’s status as a REIT.
(h) Ambiguity. In the case of
an ambiguity in the application of any of the provisions of subparagraph 8 of this Section 8, including any definition contained in subparagraph 8(a), the Board of Directors shall have the power to determine the application of the provisions of
this subparagraph 8 with respect to any situation based on the facts known to it.
(i) Modification of Ownership Limit. Subject to the
limitations provided in subparagraph 8(j), the Board of Directors may from time to time increase the Ownership Limit and shall file Articles Supplementary with the State Department of Assessment and Taxation of Maryland to evidence such increase.
(j) Limitations on Modifications.
(i) From the Initial Date and prior to the Restriction Termination Date, the Ownership Limit may not be increased if, after giving effect to such
increase, five Persons who are Beneficial Owners of Series A Preferred Stock could (taking into account the Ownership Limit) Beneficially Own, in the aggregate, more than 49.5% of the outstanding Series A Preferred Stock.
(ii) Prior to the modification of any Ownership Limit pursuant to subparagraph 8(i) of this Section 8, the Board of Directors of the Corporation may
require such opinions of counsel, affidavits, undertakings or agreements as it may deem necessary or advisable in order to determine or ensure the Corporation’s status as a REIT.
(k) Exceptions.
(i) The Board of Directors, in its sole discretion, may exempt a Person from the
Ownership Limit, if such Person is not an individual for purposes of Section 542(a)(2) of the Code and the Board of Directors obtains such representations and undertakings from such Person as are reasonably necessary to ascertain that no
individual’s Beneficial Ownership of such shares of Series A Preferred Stock will violate the Ownership Limit, and agrees that any violation of such representations or undertaking (or other action which is contrary to the restrictions contained
in this subparagraph 8 of this Section 8) or attempted violation will result in such shares of Series A Preferred Stock automatically being transferred to the Charitable Trust.
(ii) Prior to granting any exception pursuant to subparagraph 8(k)(i) of this Section 8, the Board of Directors may require a ruling from the IRS, or an opinion of counsel, in either case in form and
substance satisfactory to the Board of Directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Corporation’s status as a REIT.
36
(l) Legend. Each certificate for shares of Series A Preferred Stock shall bear legends substantially to the
effect of the following:
“The Corporation is authorized to issue two classes of capital stock which are designated as Common Stock and
Preferred Stock. The Board of Directors is authorized to determine the preferences, limitations and relative rights of the Preferred Stock before the issuance of any Preferred Stock. The Corporation will furnish, without charge, to any stockholder
making a written request therefor, a copy of the Corporation’s charter and a written statement of the designations, relative rights, preferences and limitations applicable to each such class of stock. Requests for the Corporation’s charter
and such written statement may be directed to Cedar Shopping Centers, Inc., 44 South Bayles Avenue, Port Washington, New York 11050, Attention: Secretary.
The shares of Series A Preferred Stock represented by this certificate are subject to restrictions on ownership and Transfer for the purpose of the Corporation’s maintenance of its status as a Real
Estate Investment Trust under the Code. No Person may Beneficially Own shares of Series A Preferred Stock in excess of 9.9% (or such greater percentage as may be determined by the Board of Directors of the Corporation) of the outstanding Series A
Preferred Stock of the Corporation with certain exceptions set forth in the Corporation’s charter. Any Person who attempts to Beneficially Own shares of Series A Preferred Stock in excess of the above limitations must immediately notify the
Corporation. All capitalized terms in this legend have the meanings defined in the Corporation’s charter. Transfers in violation of the restrictions described above may be void ab initio.
In addition, upon the occurrence of certain events, if the restrictions on ownership are violated, the shares of Series A Preferred Stock represented
hereby may be automatically exchanged for Trust Shares which will be held in trust by the Corporation. The Corporation has an option to acquire Trust Shares under certain circumstances. The Corporation will furnish to the holder hereof upon request
and without charge a complete written statement of the terms and conditions of the Trust Shares. Requests for such statement may be directed to Cedar Shopping Centers, Inc., 44 South Bayles Avenue, Port Washington, New York 11050, Attention:
Secretary.”
(m) Severability. If any provision of this Section 8 or any application of any such provision is determined to be
invalid by any Federal or state court having jurisdiction over the issues, the validity of the remaining provisions shall not be affected and other applications of such provision shall be affected only to the extent necessary to comply with the
determination of such court.
(9) Status. Upon any redemption of shares of Series A Preferred Stock, the shares of Series A Preferred Stock
which are redeemed will be reclassified as authorized and unissued shares of Preferred Stock, and the number of shares of Series A Preferred Stock which the Corporation has the authority to issue will be decreased by the redemption of shares of
Series
37
A Preferred Stock, so that the shares of Series A Preferred Stock which were redeemed may not be reissued.
(10) Exclusion of Other Rights. The shares of Series A Preferred Stock shall not have any preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption other than those specifically set forth in these Articles Supplementary. The shares of Series A Preferred Stock shall have
no preemptive or subscription rights.
(11) Headings of Subdivisions. The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions hereof.
(12) Severability of Provisions. If any preferences,
conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series A Preferred Stock set forth in the Charter is invalid, unlawful or
incapable of being enforced by reason of any rule of law or public policy, all other preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of
redemption of Series A Preferred Stock set forth in the Charter which can be given effect without the invalid, unlawful or unenforceable provision thereof shall, nevertheless, remain in full force and effect, and no preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of Series A Preferred Stock herein set forth shall be deemed dependent upon any other provision thereof
unless so expressed therein.
SECOND : The Shares have been classified and designated by the Board of Directors under the authority contained
in the Charter.
THIRD : These Articles Supplementary have been approved by the Board of Directors in the manner and by the vote required by
law.
FOURTH : The undersigned President of the Corporation acknowledges these Articles Supplementary to be the corporate act of the
Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this
statement is made under the penalties for perjury.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
38
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed under seal in its
name and on its behalf by its President and attested to by its Secretary on this 26th of July, 2004.
|
|
|
|
|
ATTEST:
|
|
CEDAR SHOPPING CENTERS, INC.
|
|
|
|
|
/s/ STUART H. WIDOWSKI
|
|
/s/ LEO S. ULLMAN
|
|
Stuart H. Widowski, Secretary
|
|
Leo S. Ullman, President
|
39
CEDAR SHOPPING CENTERS, INC.
ARTICLES SUPPLEMENTARY
87/8% Series A Cumulative Redeemable Preferred Stock
Cedar Shopping Centers, Inc., a
Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland (the “Department”) that:
FIRST: By Articles Supplementary filed with the Department on July 27, 2004 (the “July 2004 Articles Supplementary”), the Corporation classified and designated 2,350,000 shares of Preferred
Stock (as defined in the Charter (defined below)) as shares of 87/8% Series A Cumulative Redeemable Preferred Stock (the “Series A Preferred Stock”), and set the preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, terms and conditions of redemption and other terms and conditions of such Series A Preferred Stock, all as set forth in the July 2004 Articles Supplementary.
SECOND: Under a power contained in Article IV of the Articles of Incorporation of the Corporation, as amended and supplemented (the “Charter”),
the Board of Directors of the Corporation (the “Board of Directors”), by resolution duly adopted at a meeting duly called and held on April 15, 2004 (the “Board Resolutions”), and the Pricing Committee of the Board of
Directors established by the Board Resolutions, by resolution duly adopted on March 30, 2005, classified and designated an additional 1,200,000 shares of Preferred Stock as Series A Preferred Stock (the “Additional Shares of Series A
Preferred Stock”) and provided for the issuance thereof. The Additional Shares of Series A Preferred Stock form a single series with and have the same preferences, conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the Series A Preferred Stock established pursuant to the July 2004 Articles Supplementary, all as set forth in the July 2004 Articles
Supplementary, except as provided herein. Upon any restatement of the Charter, Sections 1 and 2 of this Article SECOND shall become part of Article IV of the Charter, with such changes in enumeration as are necessary to complete such restatement.
Section 1. Number, Preferences and Other Rights. The number of Additional Shares of Series A Preferred Stock shall be 1,200,000 and
shall form a single series with the 2,350,000 shares of Series A Preferred Stock established pursuant to the July 2004 Articles Supplementary for a total of 3,550,000 shares of Preferred Stock classified and designated as shares of Series A
Preferred Stock. The Additional Shares of Series A Preferred Stock shall have the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and
conditions of redemption of shares of stock as the 2,350,000 shares of Series A Preferred Stock established pursuant to the July 2004 Articles Supplementary, all as set forth in the July 2004 Articles Supplementary, except as provided herein. The
par value of the Additional Shares of Series A Preferred Stock shall be $.01 per share.
40
Section 2. Distributions. Holders of the Additional Shares of Series A Preferred Stock shall be
entitled to receive the full amount of all distributions payable in respect of the Series A Preferred Stock from and after the date of original issuance of the Additional Shares of Series A Preferred Stock but shall not be entitled to receive any
distributions paid or payable with regard to Series A Preferred Stock prior to the date of such issuance.
THIRD: The Additional Shares of
Series A Preferred Stock have been classified and designated by the Board of Directors under the authority contained in the Charter.
FOURTH:
These Articles Supplementary have been approved by the Board of Directors in the manner and by the vote required by law.
FIFTH: The
undersigned President of the Corporation acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best
of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
41
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed under seal in its
name and on its behalf by its President and attested to by its Secretary on this 1st of April, 2005.
|
|
|
|
|
ATTEST:
|
|
CEDAR SHOPPING CENTERS, INC.
|
|
Lise Oelbaum, Assistant Secretary
|
|
Leo S. Ullman, President
|
42
ARTICLES OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF
CEDAR SHOPPING CENTERS, INC.
Cedar Shopping Centers, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
The Articles of Amendment presently being filed increase the number of authorized shares of Common Stock and Preferred
Stock and the aggregate value thereof. The Corporation is presently authorized to issue 55 million shares, consisting of 50 million shares of Common Stock with a par value of $.06, amounting in the aggregate to par value of $3,000,000, and
5 million shares of Preferred Stock with a par value of $.01 per share, amounting in the aggregate to par value of $50,000. The Articles of Amendment increase the number of authorized shares of Common Stock to 150 million shares and the
number of authorized shares of Preferred Stock to 12.5 million shares.
1. The Articles of Incorporation of the Corporation, filed with
the State Department of Assessments and Taxation of Maryland on June 12, 1998, as amended, are hereby amended as follows:
(i) The first
paragraph of Article IV shall be deleted in its entirety and replaced with the following:
Capital Stock
A. Authorized Shares. The total number of shares of all classes of capital stock that the Corporation shall have authority to issue is 162.5 million
shares, consisting of 150 million shares of Common Stock with a par value of $.06 per share (the “Common Stock”), amounting in the aggregate to par value of $9,000,000 and 12.5 million shares of Preferred Stock with a par value
of $.01 per share (the “Preferred Stock”), amounting in the aggregate to par value of $125,000.
(ii) The first sentence of Article
IV C shall be amended to read as follows:
“C. Preferred Stock. The Board of Directors of the Corporation by resolution is hereby
expressly vested with authority to provide for the issuance of the shares of Preferred Stock in one or more classes or one or more series, with such voting powers, full or limited, or no voting powers, and with such designations, preferences and
relative, participating, optional and other special rights and qualifications, limitations or restrictions thereof, if any, as shall be stated and expressed in the resolution or resolutions providing for such issue adopted by the Board of Directors;
provided, however, (1) the preferred stock will not be used as, or in conjunction with, an anti-takeover defense (including potential mergers, in connection with an existing or future shareholder rights plan,
43
or by designating terms, or issuing shares in transactions for the purposes of aiding management in
defending against an unsolicited bid for control of the Company) unless approved by the shareholders at such time; (2) the preferred stock will not be issued to an individual or group for the purpose of creating a block of voting power to
support management on controversial issues without receiving shareholder approval; and (3) if the preferred stock is to have voting rights, the shares will have the same voting rights as the common stock (including upon conversion)”.
2. The Amendment to the Articles of Incorporation of the Corporation has been advised by the Board of Directors and approved by the holders
of at least
two-thirds
of the shares of the Corporation’s Common Stock entitled to vote at the Corporation’s Special Meeting held on September 12, 2007.
44
IN WITNESS WHEREOF, we the undersigned President and Secretary hereby swear under penalties of perjury that
the adoption of the foregoing Articles of Amendment of Articles of Incorporation of Cedar Shopping Centers, Inc. is a corporate act of Cedar Shopping Centers, Inc., and that we have caused these Articles of Amendment to be executed and attested this
12th day of September, 2007.
|
|
|
CEDAR SHOPPING CENTERS, INC.
|
|
|
|
By:
|
|
Leo S. Ullman, President
|
|
|
|
Attest:
|
|
|
|
|
|
Stuart H. Widowski, Secretary
|
45
CEDAR SHOPPING CENTERS, INC.
ARTICLES SUPPLEMENTARY
87/8% Series A Cumulative Redeemable Preferred Stock
Cedar Shopping
Centers, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland (the “Department”) that:
Article I.
FIRST
: By Articles Supplementary filed with the Department on July 27, 2004 (the “July 2004 Articles Supplementary”), the Corporation classified and designated
2,350,000 shares of Preferred Stock (as defined in the Charter (defined below)) as shares of 87/8% Series A Cumulative Redeemable Preferred Stock (the “Series A Preferred Stock”), and set the preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, terms and conditions of redemption and other terms and conditions of such Series A Preferred Stock. By Articles Supplementary filed with
the Department on April 1, 2005 (the “April 2005 Articles Supplementary”), the Corporation classified and designated an additional 1,200,000 shares of Preferred Stock as Series A Preferred Stock, forming a single series with and
having the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the Series A Preferred Stock
established pursuant to the July 2004 Articles Supplementary.
Article II.
SECOND
: Under a power contained in Article IV
of the Articles of Incorporation of the Corporation, as amended and supplemented (the “Charter”), the Board of Directors of the Corporation (the “Board of Directors”), by resolutions duly adopted at meetings duly called and held
on August 16, 2010 and August 18, 2010 (the “Board Resolutions”), and the Pricing Committee of the Board of Directors established by the Board Resolutions, by resolution duly adopted on August 18, 2010, classified and designated
an additional 2,850,000 shares of Preferred Stock as Series A Preferred Stock (the “Additional Shares of Series A Preferred Stock”) and provided for the issuance thereof. The Additional Shares of Series A Preferred Stock
form a single series with and have the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the
Series A Preferred Stock established pursuant to the July 2004 Articles Supplementary and the April 2005 Articles Supplementary, all as set forth in the July 2004 Articles Supplementary and the April 2005 Articles
Supplementary. Upon any restatement of the Charter, Sections 1 and 2 of this Article SECOND shall become part of Article IV of the Charter, with such changes in enumeration as are necessary to complete such restatement.
46
Section 1.
Number, Preferences and Other Rights
. The number of Additional Shares
of Series A Preferred Stock shall be 2,850,000 and shall form a single series with the 3,550,000 shares of Series A Preferred Stock established pursuant to the July 2004 Articles Supplementary and the April 2005 Articles
Supplementary for a total of 6,400,000 shares of Preferred Stock classified and designated as shares of Series A Preferred Stock. The Additional Shares of Series A Preferred Stock shall have the same preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the 3,550,000 shares of Series A Preferred Stock established pursuant to the
July 2004 Articles Supplementary and the April 2005 Articles Supplementary, all as set forth in the July 2004 Articles Supplementary and the April 2005 Articles Supplementary. The par value of the Additional Shares of
Series A Preferred Stock shall be $.01 per share.
Section 2.
Distributions
. Holders of the Additional Shares
of Series A Preferred Stock shall be entitled to receive the full amount of all distributions payable in respect of the Series A Preferred Stock from the Distribution Payment Date immediately preceding the date of original issuance of the
Additional Shares of Series A Preferred Stock but shall not be entitled to receive any distributions paid or payable with regard to Series A Preferred Stock prior to such Distribution Payment Date.
THIRD
: The Additional Shares of Series A Preferred Stock have been classified and designated by the Board of Directors under
the authority contained in the Charter.
FOURTH
: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH
: The undersigned President of the Corporation
acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge, information and
belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
47
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed
under seal in its name and on its behalf by its President and attested to by its Secretary on this 18th of August, 2010.
|
|
|
|
|
|
|
|
|
ATTEST:
|
|
|
|
CEDAR SHOPPING CENTERS, INC.
|
|
|
|
|
|
|
|
|
/s/ Stuart H. Widowski
Stuart H. Widowski, Secretary
|
|
|
|
/s/ Leo S. Ullman
Leo S. Ullman, President
|
|
|
48
ARTICLES OF AMENDMENT
(1)
(2)
Cedar Shopping Centers, Inc.,
, a Maryland corporation hereby certifies to the State Department of
Assessments and Taxation of Maryland that:
(3)
The charter of the corporation is hereby amended as follows:
By striking out Article I of the Articles of Incorporation and inserting in lieu thereof the following:
ARTICLE I
Name
The name of the Corporation shall be Cedar Realty Trust, Inc. (the “Corporation”).
The effective date of this name change amendment shall be November 9, 2011.
This amendment of the charter of the corporation has been approved by
(4)
The Board
of Directors
We the undersigned President and Secretary swear under penalties of perjury that the foregoing is a corporate
act.
|
|
|
|
|
|
|
|
|
(5)
/s/ Stuart Widowski
|
|
|
|
(5)
/s/ Bruce J. Schanzer
|
|
|
|
|
|
|
|
|
(6)
Return address of filing party:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
49
CEDAR REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
7.25% Series B Cumulative Redeemable Preferred Stock
Cedar Realty Trust,
Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST
: Under a power contained in Article IV of the Articles of Incorporation of the Corporation, as amended and supplemented (the “Charter”), the Board of Directors of the Corporation
(the “Board of Directors”), by resolution duly adopted at a meeting duly called and held on May 2, 2012 (the “Board Resolutions”), and the Pricing Committee of the Board of Directors established by the Board Resolutions, by
resolution duly adopted at a meeting duly called and held on May 14, 2012, classified and designated 400,000 shares (the “Shares”) of Preferred Stock (as defined in the Charter) as shares of 7.25% Series B Cumulative Redeemable
Preferred Stock, with the preferences, conversions and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as follows and provided
for the issuance thereof. Upon any restatement of the Charter, Sections 1 through 13 of this Article FIRST shall become part of Article IV of the Charter, with such changes in enumeration as are necessary to complete such restatement.
(1)
Designation and Number
. A series of shares of Preferred Stock, designated as the “7.25% Series B Cumulative Redeemable
Preferred Stock” (the “Series B Preferred Stock”), is hereby established. The number of shares of Series B Preferred Stock shall be 400,000. The par value of the Series B Preferred Stock shall be $.01 per share.
(2)
Rank
. The Series B Preferred Stock will, with respect to distribution rights and rights upon liquidation, dissolution or
winding up of the Corporation, rank (a) senior to all classes or series of Common Stock (as defined in the Charter), and to all equity securities the terms of which provide that such equity securities shall rank junior to the Series B Preferred
Stock; (b) on parity with the Series A Preferred Stock (as defined in the Charter) and with all equity securities issued by the Corporation the terms of which specifically provide that such equity securities rank on parity with the Series B
Preferred Stock; and (c) junior to all equity securities issued by the Corporation the terms of which specifically provide that such equity securities rank senior to the Series B Preferred Stock. The term “equity securities” shall not
include convertible debt securities.
(3)
Distributions
.
(a) Holders of Series B Preferred Stock shall be entitled to receive, when and if declared by the Board of Directors, out of funds
legally available for payment of distributions, cumulative preferential cash distributions at the rate of 7.25% of the liquidation preference per annum (which is equivalent to a fixed annual amount of $1.8125 per share of Series B Preferred Stock).
Such distributions shall accrue and cumulate from the date of original issuance (May 22, 2012) and shall be payable quarterly in arrears on the 20th day of February, May, August and November of each year or, if not a business day, the next
succeeding business
day (each a “Distribution Payment Date”). The first distribution on the Series B Preferred Stock shall be paid on August 20, 2012, will be for more than a full quarter and will
reflect distributions accumulated from the date of original issuance through August 20, 2012. Any distribution payable on the Series B Preferred Stock for any partial distribution period shall be prorated and computed on the basis of a
360-day
year consisting of twelve
30-day
months. Distributions shall be payable to holders of record as they appear in the stock records of the Corporation at the close of
business on the applicable distribution record date, which shall be a date designated by the Board of Directors for the payment of distributions that is not more than 60 nor less than 10 calendar days immediately preceding such Distribution Payment
Date (each, a “Distribution Record Date”).
(b) No distribution on the Series B Preferred Stock shall be authorized
or declared or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness or any other of the Corporation’s preferred
stock, prohibits such authorization, declaration, payment or setting apart for payment or provides that such authorization, declaration, payment or setting apart for payment would constitute a breach or default thereunder, or if such authorization,
declaration, payment or setting apart for payment shall be restricted or prohibited by law.
Notwithstanding anything to the
contrary contained herein, distributions on the Series B Preferred Stock shall accrue and cumulate whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such distributions and whether or not
such distributions are declared by the Board of Directors. Accrued but unpaid distributions on the Series B Preferred Stock shall cumulate as of the Distribution Payment Date on which they first become payable or on the date of redemption, as the
case may be. No interest shall be payable in respect of any distribution on the Series B Preferred Stock that may be in arrears.
(c) Except as provided in the following sentence, if any Series B Preferred Stock are outstanding, no distributions, other than distributions in kind of the Corporation’s Common Stock or other shares
of the Corporation’s equity securities ranking junior to the Series B Preferred Stock as to distributions and upon liquidation, may be declared or paid or set apart for payment, and no other distribution may be declared or made upon, the
Corporation’s Common Stock, the Series A Preferred Stock or any other shares of equity securities of the Corporation of any other class or series ranking, as to distributions and upon liquidation, on parity with or junior to the Series B
Preferred Stock unless full cumulative distributions for all past distribution periods have been or contemporaneously are declared and paid or declared and a sum sufficient is set apart for such payment on the Series B Preferred Stock for all past
distribution periods. When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the Series B Preferred Stock, the Series A Preferred Stock and all other equity securities ranking on parity, as to
distributions, with the Series B Preferred Stock, all distributions declared upon the Series B Preferred Stock, the Series A Preferred Stock and any other equity securities ranking on parity, as to distributions, with the Series B Preferred Stock
shall be authorized pro rata so that the amount of distributions authorized per share of Series B Preferred Stock, per share of Series A Preferred Stock and each such other equity security shall in all cases bear to each other the same ratio that
accrued
51
distributions per share of Series B Preferred Stock, per share of Series A Preferred Stock and such other equity security (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such other equity securities do not have a cumulative distribution) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or
payments on Series B Preferred Stock which may be in arrears.
(d) Except as provided in subparagraph (c) of this
Section 3, unless full cumulative distributions on the Series B Preferred Stock have been or contemporaneously are declared and paid for all past distribution periods or declared and a sum sufficient is set apart for payment for all past
distribution periods, no Common Stock, Series A Preferred Stock or any other shares of equity securities of the Corporation ranking junior to or on parity with the Series B Preferred Stock as to distributions or upon liquidation shall be redeemed,
purchased or otherwise acquired for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for Common Stock or other shares of
equity securities of the Corporation ranking junior to the Series B Preferred Stock as to distributions and amounts upon liquidation). The foregoing shall not prohibit any redemption, purchase or other acquisition by the Corporation of any class or
series of equity securities of the Corporation for the purpose of enforcing restrictions on ownership contained in the Corporation’s Charter (including these Articles Supplementary) or preserving the Corporation’s status as a REIT (as
defined in Section 8 hereof).
(e) Holders of Series B Preferred Stock shall not be entitled to any distribution,
whether payable in cash, property or shares, in excess of full cumulative distributions on the Series B Preferred Stock as described above. Any distribution payment made on the Series B Preferred Stock, including any capital gain distributions,
shall first be credited against the earliest accrued but unpaid distribution due with respect to the Series B Preferred Stock which remains payable.
(f) If, for any taxable year, the Corporation elects to designate as a “capital gain dividend” (as defined in Section 857 of the Code) any portion (the “Capital Gains Amount”) of
the dividends (as determined for federal income tax purposes) paid or made available for the year to holders of all series or classes of the Corporation’s stock (the “Total Dividends”), then, except as otherwise required by applicable
law, that portion of the Capital Gains Amount that shall be allocable to the holders of Series B Preferred Stock shall be in proportion to the amount that the total dividends (as determined for federal income tax purposes) paid or made available to
the holders of the Series B Preferred Stock for the year bears to the Total Dividends. Except as otherwise required by applicable law, the Corporation will make a similar allocation with respect to any undistributed long-term capital gains of the
Corporation which are to be included in its stockholders’ long-term capital gains, based on the allocation of the Capital Gains Amount which would have resulted if such undistributed long-term capital gains has been distributed as “capital
gains dividends” by the Corporation to its stockholders.
52
(4)
Liquidation Preference
.
(a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation (referred to herein sometimes
as a “liquidation”), the holders of Series B Preferred Stock then outstanding shall be entitled to receive out of the assets of the Corporation legally available for distribution to stockholders (after payment or provision for payment of
all debts and other liabilities of the Corporation) the sum of (i) the liquidation preference of $25.00 per share and (ii) an amount equal to any accrued and unpaid distributions (whether or not declared) to the date of payment, before any
distribution of assets is made to holders of Common Stock (as defined in the Charter) or any equity securities that the Corporation may issue that rank junior to the Series B Preferred Stock as to liquidation rights.
(b) If, upon any such voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the assets of the Corporation
are insufficient to make full payment to holders of the Series B Preferred Stock, the Series A Preferred Stock and any shares of other classes or series of equity securities of the Corporation ranking on parity with the Series B Preferred Stock as
to liquidation rights, then the holders of the Series B Preferred Stock, the Series A Preferred Stock and all other such classes or series of equity securities ranking on parity with the Series B Preferred Stock as to liquidation rights shall share
ratably in any distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled.
(c) Written notice of any such liquidation, dissolution or winding up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable in such
circumstances shall be payable, shall be given by first class mail, postage
pre-paid,
not less than 30 nor more than 60 calendar days immediately preceding the payment date stated therein, to each record
holder of the Series B Preferred Stock at the respective addresses of such holders as the same shall appear on the share transfer records of the Corporation.
(d) After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series B Preferred Stock shall have no right or claim to any of the remaining assets of the
Corporation.
(e) None of a consolidation or merger of the Corporation with or into another entity, the merger of another
entity with or into the Corporation, a statutory share exchange by the Corporation or a sale, lease, transfer or conveyance of all or substantially all of the Corporation’s assets or business shall be considered a liquidation, dissolution or
winding up of the Corporation.
(f) In determining whether a distribution (other than upon voluntary or involuntary
dissolution) by dividend, redemption or other acquisition of shares of the Corporation or otherwise is permitted under Maryland law, amounts that would be needed, if the Corporation were to be dissolved at the time of the distribution, to satisfy
the preferential rights upon dissolution of the holders of Series B Preferred Stock will not be added to the Corporation’s total liabilities.
53
(5)
Redemption
.
(a) Except as otherwise set forth in this Section 5 and in Section 8, the Series B Preferred Stock is not redeemable prior to
May 22, 2017, except that the Corporation will be entitled to redeem, purchase or acquire shares of Series B Preferred Stock in order to ensure that the Corporation remains qualified as a REIT (as defined in Section 8 hereof).
(b) On or after May 22, 2017 the Corporation, at its option, upon giving notice as provided below, may redeem the Series B
Preferred Stock, in whole or from time to time in part, for cash, at a redemption price of $25.00 per share, plus all accrued and unpaid distributions on such Series B Preferred Stock to, but not including, the date of redemption, whether or not
declared (the “Optional Redemption Right”).
(c) Upon the occurrence of a Change of Control (as defined below), the
Corporation, at its option, upon giving notice as provided below, may redeem the Series B Preferred Stock, in whole or in part, within 120 days after the first date on which such Change of Control occurred, at a redemption price of $25.00 per share,
plus all accrued and unpaid distributions on such Series B Preferred Stock to, but not including, the date of redemption, whether or not declared (the “Special Optional Redemption Right”, and together with the Optional Redemption Right,
the “Redemption Right”).
(d) If fewer than all of the outstanding shares of Series B Preferred Stock are to be
redeemed pursuant to the Redemption Right, the shares to be redeemed shall be selected pro rata (as nearly as practicable without creating fractional shares).
(e) Notwithstanding anything to the contrary contained herein, unless full cumulative distributions on all shares of Series B Preferred Stock have been or contemporaneously are declared and paid for all
past distribution periods or declared and a sum sufficient is set apart for payment for all past distribution periods, no shares of Series B Preferred Stock shall be redeemed unless all outstanding shares of Series B Preferred Stock are
simultaneously redeemed. In addition, unless full cumulative distributions on all shares of Series B Preferred Stock have been or contemporaneously are declared and paid for all past distribution periods or declared and a sum sufficient is set apart
for payment for all past distribution periods, the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Series B Preferred Stock or any other shares of equity securities of the Corporation ranking junior to or on
parity with the Series B Preferred Stock as to distributions or upon liquidation (except by conversion into or exchange for shares of equity securities of the Corporation ranking junior to the Series B Preferred Stock as to distributions and upon
liquidation). The restrictions in this Section 5 on redemptions, purchases and other acquisitions shall not prevent the redemption, purchase or acquisition by the Corporation of Preferred Stock of any series pursuant to Article IV of the
Charter or Section 5(a) hereof, or otherwise in order to ensure that the Corporation remains qualified as a REIT for United States federal income tax purposes, or the purchase or acquisition of Series B Preferred Stock pursuant to a purchase or
exchange offer made on the same terms to all holders of the Series B Preferred Stock.
(f) Immediately prior to any
redemption of shares of Series B Preferred Stock, the Corporation shall pay, in cash, any accrued and unpaid distributions to, but
54
not including, the redemption date, whether or not declared, unless a redemption date falls after a Distribution Record Date and prior to the corresponding Distribution Payment Date, in which
case each holder of Series B Preferred Stock at the close of business on such Distribution Record Date shall be entitled to the distribution payable on such shares on the corresponding Distribution Payment Date notwithstanding the redemption of such
shares before the Distribution Payment Date. Except as provided in the previous sentence, the Corporation shall make no payment or allowance for unpaid distributions, whether or not in arrears, on Series B Preferred Stock for which a notice of
redemption has been given.
(g) The following provisions set forth the procedures to exercise the Redemption
Right:
(i) Notice of redemption will be mailed by the Corporation, postage prepaid, no less than 30 nor more
than 60 calendar days immediately preceding the redemption date, addressed to the respective holders of record of the Series B Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the
Corporation. No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the redemption of any Series B Preferred Stock except as to the holder to whom notice was defective or not
given.
(ii) In addition to any information required by law or by the applicable rules of any exchange upon
which the Series B Preferred Stock may be listed or admitted to trading, each notice shall state: (A) the redemption date; (B) the redemption price, including, without limitation, a statement as to whether or not accumulated but unpaid
distributions will be payable as part of the redemption price, or payable on the next Distribution Payment Date, to the record holder at the close of business on the relevant record date; (C) the number of Series B Preferred Stock to be
redeemed; (D) the place or places where the holders of Series B Preferred Stock may surrender certificates for payment of the redemption price; (E) that distributions on the Series B Preferred Stock to be redeemed will cease to accrue on
the redemption date; and (F) if the notice of redemption is mailed pursuant to the Special Optional Redemption Right, (i) that the Series B Preferred Stock is being redeemed pursuant to the Special Optional Redemption Right in connection
with the occurrence of a Change of Control and a brief description of the transaction or transactions constituting such Change of Control; and (ii) that the holders of the Series B Preferred Stock to which the notice relates will not be able to
tender such Series B Preferred Stock for conversion in connection with the Change of Control and each share of Series B Preferred Stock tendered for conversion that is selected, prior to the Change of Control Conversion Date (as defined in
subparagraph (b)(vi) of Section 7 below), for redemption will be redeemed on the related date of redemption instead of converted on the Change of Control Conversion Date. If less than all of the Series B Preferred Stock held by any holder are
to be redeemed, the notice mailed to each holder shall also specify the number of Series B Preferred Stock held by such holder to be redeemed. Any such redemption may be made conditional on such factors as may be determined by the Board of Directors
and as set forth in the notice.
55
(iii) On or after the redemption date, each holder of Series B Preferred
Stock to be redeemed shall present and surrender the certificates representing his Series B Preferred Stock to the Corporation at the place designated in the notice of redemption and thereupon the redemption price of such shares (including all
accrued and unpaid distributions up to the redemption date) shall be paid to or on the order of the person whose name appears on such certificate representing Series B Preferred Stock as the owner thereof and each surrendered certificate shall be
canceled. If fewer than all the shares represented by any such certificate representing Series B Preferred Stock are to be redeemed, a new certificate shall be issued representing the unredeemed shares.
(iv) From and after the redemption date (unless the Corporation defaults in payment of the redemption price), all
distributions on the Series B Preferred Stock designated for redemption and all rights of the holders thereof, except the right to receive the redemption price thereof and all accrued and unpaid distributions up to the redemption date, shall
terminate with respect to such shares and such shares shall not thereafter be transferred (except with the consent of the Corporation) on the Corporation’s stock transfer records, and such shares shall not be deemed to be outstanding for any
purpose whatsoever. At its election, the Corporation, prior to a redemption date, may irrevocably deposit the redemption price (including accrued and unpaid distributions to the redemption date) of the Series B Preferred Stock so called for
redemption in trust for the holders thereof with a bank or trust company, in which case the redemption notice to holders of the Series B Preferred Stock to be redeemed shall (A) state the date of such deposit, (B) specify the office of
such bank or trust company as the place of payment of the redemption price and (C) require such holders to surrender the certificates representing such shares at such place on or about the date fixed in such redemption notice (which may not be
later than the redemption date) against payment of the redemption price (including all accrued and unpaid distributions to the redemption date). Any monies so deposited which remain unclaimed by the holders of the Series B Preferred Stock at the end
of two years after the redemption date shall be returned by such bank or trust company to the Corporation.
(h) Any Series B
Preferred Stock that shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued Preferred Stock, without designation as to series until such shares are once more designated as part of a particular
series by the Board of Directors.
(i) If, prior to the Change of Control Conversion Date, the Corporation has provided or
provides notice of redemption with respect to the Redemption Right in accordance with this Section 5, the holders of Series B Preferred Stock will not have the conversion right described in Section 7 below.
56
(j) For the purposes of this Section 5 and Section 7 below, a “Change of
Control” is when, after the original issuance of the Series B Preferred Stock, the following have occurred and are continuing: (x) the acquisition by any person, including any syndicate or group deemed to be a “person” under
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or
other acquisition transactions of shares of the Corporation entitling that person to exercise more than 50% of the total voting power of all shares of the Corporation entitled to vote generally in elections of directors (except that such person will
be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and (y) following the closing
of any transaction referred to in clause (x), neither the Corporation nor the acquiring or surviving entity has a class of common securities (or American Depositary Receipts (“ADRs”) representing such securities) listed on the New York
Stock Exchange (the “NYSE”), the NYSE Amex Equities (the “NYSE Amex”), or the NASDAQ Stock Market (the “NASDAQ”), or listed or quoted on an exchange or quotation system that is successor to the NYSE, the NYSE Amex or
NASDAQ (each individually, a “National Market,” and collectively, the “National Markets”); or (z) a change of control occurs pursuant to the provisions of any shareholder rights plan that may be adopted by the Corporation.
(6)
Voting Rights
.
(a) Holders of the Series B Preferred Stock shall not have any voting rights, except as set forth below.
(b) Whenever (i) distributions on the Series B Preferred Stock are in arrears for six or more quarterly periods, whether or not consecutive (a “Preferred Distribution Default”), or
(ii) once the Series B Preferred Stock becomes initially eligible for listing on a National Market, the Corporation fails to maintain such listing for the Series B Preferred Stock for 180 consecutive days or longer (a “Listing
Default”), the holders of Series B Preferred Stock (voting together as a single class with the holders of Series A Preferred Stock and all other classes or series of Preferred Stock upon which like voting rights have been conferred and are
exercisable (“Parity Preferred Stock”)) shall be entitled to elect a total of two additional directors to the Corporation’s Board of Directors (the “Preferred Stock Directors”), if not already elected by reason of similar
types of provisions with respect to Preferred Stock Directors, at a special meeting called by the holders of record of at least 10% of the outstanding shares of Series B Preferred Stock or the record holders of at least 10% of the outstanding shares
of Parity Preferred Stock (unless such request is received less than 90 calendar days before the date fixed for the next annual or special meeting of stockholders) or, if the request for a special meeting is received by the Corporation less than 90
calendar days before the date fixed for the next annual or special meeting of stockholders, at the next annual meeting of stockholders, and at each subsequent annual meeting of stockholders until (x) with respect to a Preferred Distribution
Default, all distributions accrued on the Series B Preferred Stock for the past distribution periods shall have been fully paid or declared and a sum sufficient for the payment thereof set aside for payment, or (y) with respect to a Listing
Default, the Corporation has cured the Listing Default by again subjecting the Series B Preferred Stock to listing on a National Market. On any matter in which the holders of Series B Preferred Stock are entitled to vote (as expressly provided
herein or as
57
may be required by law), including any action by written consent, each share of Series B Preferred Stock shall have one vote per share, except that when shares of any other class or series of
Parity Preferred Stock shall have the right to vote with the Series B Preferred Stock as a single class on any matter, then the holders of Series B Preferred Stock and the holders of such other class or series of Parity Preferred Stock shall have
with respect to such matters one vote per $25.00 of stated liquidation preference. The Preferred Stock Directors shall be elected by a plurality of the votes cast by the holders of the outstanding shares of Series B Preferred Stock when they have
the voting rights set forth in this subparagraph (b) of Section 6 (voting together as a single class with the holders of any outstanding shares of Parity Preferred Stock) in the election of such Preferred Stock Directors to serve until the
next annual meeting of stockholders and until their successors are duly elected and qualified or until such Preferred Stock Directors’ right to hold the office terminates as described below, whichever occurs earlier.
(c) If and when (i) with respect to a Preferred Distribution Default, all accrued distributions on the Series B Preferred Stock
shall have been paid in full or declared and a sum sufficient for the payment thereof set aside for payment in full, the holders of Series B Preferred Stock shall be divested of the voting rights set forth in subparagraph (b) of this Section 6
(subject to revesting in the event of each and every Preferred Distribution Default) and, if all accrued distributions have been paid in full or declared by the Board of Directors and set aside for payment in full on all other series of Parity
Preferred Stock upon which like voting rights have been conferred and are exercisable, the term of office of each Preferred Stock Director so elected shall terminate, or (ii) with respect to a Listing Default, the Corporation has cured the
Listing Default by again subjecting the Series B Preferred Stock to listing on a National Market, the holders of Series B Preferred Stock shall be divested of the voting rights set forth in subparagraph (b) of this Section 6 (subject to
revesting in the event of each and every Listing Default), and the term of office of each Preferred Stock Director so elected shall terminate. Any Preferred Stock Director may be removed at any time with or without cause by the vote or consent of,
and shall not be removed otherwise than by the vote of, the holders of a majority of the outstanding Series B Preferred Stock when they have the voting rights set forth in subparagraph (b) of this Section 6 (voting together as a single
class with the holders of any outstanding shares of Parity Preferred Stock). So long as a Preferred Distribution Default or Listing Default shall continue, any vacancy in the office of a Preferred Stock Director may be filled by written consent of
the Preferred Stock Director remaining in office, or if none remains in office, by a vote of the holders of a majority of the outstanding Series B Preferred Stock when they have the voting rights set forth in subparagraph (b) of this
Section 6 (voting together as a single class with the holders of any outstanding shares of Parity Preferred Stock). The Preferred Stock Directors shall each be entitled to one vote per director on any matter.
(d) So long as any Series B Preferred Stock remains outstanding, the Corporation shall not, without the affirmative vote or consent of
the holders of at least
two-thirds
of the Series B Preferred Stock outstanding at the time, given in person or by proxy, either in writing or at a meeting (such series voting separately as a class):
(i) authorize, create or increase the authorized or issued amount of any class or series of equity securities ranking senior to the outstanding Series B Preferred Stock with respect to the payment of distributions or the distribution of assets
upon voluntary or involuntary liquidation, dissolution or winding up of the Corporation, or reclassify any authorized equity securities of the Corporation into any such senior equity securities, or create, authorize or issue any obligation or
security convertible into or
58
evidencing the right to purchase any such senior equity securities; or (ii) amend, alter or repeal the provisions of the Charter (including these Articles Supplementary), whether by merger
or consolidation (in either case, an “Event”) or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the Series B Preferred Stock; provided, however, that with respect to the occurrence
of any Event, the occurrence of any such event will not be deemed to materially and adversely affect any right, preference, privilege or voting power of the Series B Preferred Stock or the holders thereof so long as the Series B Preferred Stock
remains outstanding with the terms thereof materially unchanged, or, if the Corporation is not the surviving entity in such transaction, the Series B Preferred Stock is exchanged for a security of the surviving entity with terms that are materially
the same as the Series B Preferred Stock; and provided further that any increase in the amount of authorized Series B Preferred Stock or the creation or issuance of or increase in the amount of any other class or series of the Corporation’s
equity securities, in each case ranking on parity with or junior to the Series B Preferred Stock with respect to the payment of distributions and the distribution of assets upon voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, shall not be deemed to materially and adversely affect the rights, preferences, privileges or voting powers of the Series B Preferred Stock.
(e) The foregoing voting provisions shall not apply if, at or prior to the time when the action with respect to which such vote or consent would otherwise be required shall be effected, all outstanding
Series B Preferred Stock shall have been redeemed or called for redemption upon proper notice and sufficient funds shall have been deposited in trust to effect such redemption.
(7)
Conversion
.
(a) Except as otherwise set forth in this Section 7, the Series B Preferred Stock is not convertible into or exchangeable for any other property or securities of the Corporation.
(b)
Conversion Right
.
(i) Upon the occurrence of a Change of Control (as defined in subparagraph (j) of Section 5), each holder of Series B Preferred Stock shall have the right, unless, prior to the
Change of Control Conversion Date (as defined below), the Corporation has provided or provides notice of its election to redeem the Series B Preferred Stock pursuant to the Redemption Right, to convert some or all of the Series B Preferred Stock
held by such holder (the “Change of Control Conversion Right”) on the Change of Control Conversion Date into a number of shares of Common Stock per share of Series B Preferred Stock to be converted (the “Common Stock Conversion
Consideration”) equal to the lesser of (A) the quotient obtained by dividing (1) the sum of (x) the $25.00 liquidation preference plus (y) the amount of any accrued and unpaid distributions to, but not including, the Change
of Control Conversion Date (unless the Change of Control Conversion Date is after a record date for the Series B Preferred Stock distribution payment and prior to the corresponding Series B Preferred Stock Distribution Payment Date, in which case no
additional amount for such accrued
59
and unpaid distribution will be included in such sum) by (2) the Common Stock Price (as defined below) and (B) 10.2041 (the “Stock Cap”), subject to Section 7(b)(ii).
(ii) The Stock Cap is subject to pro rata adjustments for any stock splits (including those effected pursuant
to a distribution of Common Stock), subdivisions or combinations (in each case, a “Stock Split”) with respect to Common Stock as follows: the adjusted Stock Cap as the result of a Stock Split shall be the number of shares of Common Stock
that is equivalent to the product obtained by multiplying (i) the Stock Cap in effect immediately prior to such Stock Split by (ii) a fraction, the numerator of which is the number of shares of Common Stock outstanding after giving effect
to such Stock Split and the denominator of which is the number of shares of Common Stock outstanding immediately prior to such Stock Split.
(iii) For the avoidance of doubt, subject to the immediately succeeding sentence, the aggregate number of shares of Common Stock (or equivalent Alternative Conversion Consideration (as defined below), as
applicable) issuable in connection with the exercise of the Change of Control Conversion Right (or equivalent Alternative Conversion Consideration, as applicable) (the “Exchange Cap”), will not exceed 4,081,640 in total (or equivalent
Alternative Conversion Consideration, as applicable). The Exchange Cap is subject to pro rata adjustments for any Stock Splits on the same basis as the corresponding adjustment to the Stock Cap and for additional issuances of shares of Series B
Preferred Stock in subsequent offerings.
(iv) In the case of a Change of Control pursuant to which shares of
Common Stock shall be converted into cash, securities or other property or assets (including any combination thereof) (the “Alternative Form Consideration”), a holder of Series B Preferred Stock shall receive upon conversion of such Series
B Preferred Stock the kind and amount of Alternative Form Consideration which such holder of Series B Preferred Stock would have owned or been entitled to receive upon the Change of Control had such holder of Series B Preferred Stock held a number
of shares of Common Stock equal to the Common Stock Conversion Consideration immediately prior to the effective time of the Change of Control (the “Alternative Conversion Consideration”; and the Common Stock Conversion Consideration or the
Alternative Conversion Consideration, as may be applicable to a Change of Control, shall be referred to herein as the “Conversion Consideration”).
(v) In the event that holders of Common Stock have the opportunity to elect the form of consideration to be received in the Change of Control, the consideration that the holders of Series B Preferred
Stock shall receive shall be the form and proportion of the aggregate consideration elected by the holders of the Common Stock who participate in the determination (based on the weighted average of elections) and shall be subject to any limitations
to which all holders of Common Stock are subject, including, without limitation, pro rata reductions applicable to any portion of the consideration payable in the Change of Control.
60
(vi) The “Change of Control Conversion Date” shall be a Business
Day set forth in the notice of Change of Control provided in accordance with Section 7(d) below that is no less than 20 days nor more than 35 days after the date on which the Corporation provides such notice pursuant to Section 7(d).
(vii) The “Common Stock Price” shall be (i) the amount of cash consideration per share of
Common Stock, if the consideration to be received in the Change of Control by holders of Common Stock is solely cash, or (ii) the average of the closing prices per share of Common Stock on the NYSE for the ten consecutive trading days
immediately preceding, but not including, the effective date of the Change of Control, if the consideration to be received in the Change of Control by holders of Common Stock is other than solely cash.
(c) No fractional shares of Common Stock shall be issued upon the conversion of Series B Preferred Stock. In lieu of
fractional shares, holders shall be entitled to receive the cash value of such fractional shares based on the Common Stock Price.
(d) Within 15 days following the occurrence of a Change of Control, a notice of occurrence of the Change of Control describing the resulting Change of Control Conversion Right shall be delivered to the
holders of record of the Series B Preferred Stock at their addresses as they appear on the Corporation’s share transfer records and provided to the Corporation’s transfer agent. No failure to give such notice or any defect thereto or in
the mailing thereof shall affect the validity of the proceedings for the conversion of any Series B Preferred Stock except as to the holder to whom notice was defective or not given. Each notice shall state: (i) the events constituting the
Change of Control; (ii) the date of the Change of Control; (iii) the last date on which the holders of Series B Preferred Stock may exercise their Change of Control Conversion Right; (iv) the method and period for calculating the
Common Stock Price; (v) the Change of Control Conversion Date, which shall be a Business Day occurring within 20 to 35 days following the date of such notice; (vi) that if, prior to the Change of Control Conversion Date, the Corporation
has provided or provides notice of its election to redeem all or any portion of the Series B Preferred Stock, the holder will not be able to convert Series B Preferred Stock and such Series B Preferred Stock shall be redeemed on the related
redemption date, even if such shares have already been tendered for conversion pursuant to the Change of Control Conversion Right; (vii) if applicable, the type and amount of Alternative Conversion Consideration entitled to be received per each
share of Series B Preferred Stock; (viii) the name and address of the paying agent and the conversion agent; and (ix) the procedures that the holders of Series B Preferred Stock must follow to exercise the Change of Control Conversion
Right.
(e) The Corporation shall issue a press release and post notice on the Corporation’s website, in any event prior
to the opening of business on the first Business Day following any date on which the Corporation provides notice pursuant to Section 7(d) above to the holders of Series B Preferred Stock.
61
(f) To exercise the Change of Control Conversion Right, a holder of Series B Preferred
Stock shall be required to deliver, on or before the close of business on the Change of Control Conversion Date, the certificates evidencing the Series B Preferred Stock, to the extent such shares are certificated, to be converted, duly endorsed for
transfer, together with a written conversion notice (the “Conversion Notice”) to the Corporation’s transfer agent. The Conversion Notice shall state: (i) the relevant Change of Control Conversion Date; (ii) the number of
Series B Preferred Stock to be converted; and (iii) that the Series B Preferred Stock is to be converted pursuant to the applicable terms of the Series B Preferred Stock. Notwithstanding the foregoing, if the Series B Preferred Stock is held in
global form, such notice shall comply with applicable procedures of The Depository Trust Company (“DTC”).
(g)
Holders of Series B Preferred Stock may withdraw any notice of exercise of a Change of Control Conversion Right (in whole or in part) by a written notice of withdrawal (the “Withdrawal Notice”) delivered to the Corporation’s transfer
agent prior to the close of business on the Business Day prior to the Change of Control Conversion Date. The Withdrawal Notice must state: (i) the number of withdrawn shares of Series B Preferred Stock; (ii) if certificated shares of
Series B Preferred Stock have been issued, the certificate numbers of the withdrawn shares of Series B Preferred Stock; and (iii) the number of shares of Series B Preferred Stock, if any, which remain subject to the Conversion Notice.
Notwithstanding the foregoing, if the shares of Series B Preferred Stock are held in global form, the Withdrawal Notice shall comply with applicable procedures of DTC.
(h) Series B Preferred Stock as to which the Change of Control Conversion Right has been properly exercised and for which the conversion notice has not been properly withdrawn shall be converted into the
applicable Conversion Consideration in accordance with the Change of Control Conversion Right on the Change of Control Conversion Date, unless, prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of its
election to redeem such Series B Preferred Stock, pursuant to its Redemption Right. If the Corporation elects to redeem Series B Preferred Stock that would otherwise be converted into the applicable Conversion Consideration on a Change of Control
Conversion Date, such Series B Preferred Stock shall not be so converted and the holders of such shares shall be entitled to receive on the applicable redemption date $25.00 per share, plus any accrued and unpaid distributions thereon to, but not
including, the redemption date in accordance with Section 5 above.
(i) The Corporation shall deliver the applicable
Conversion Consideration no later than the third Business Day following the Change of Control Conversion Date.
(j)
Notwithstanding anything to the contrary contained herein, no holder of Series B Preferred Stock will be entitled to convert such Series B Preferred Stock into Common Stock to the extent that receipt of such shares of Common Stock would cause the
holder of such shares of Common Stock (or any other person) to own shares of Common Stock of the Corporation in excess of the Ownership Limit, unless the Board grants a waiver of such limitation.
62
(8)
Ownership Limitations
. The provisions of this Section 8 shall apply with
respect to the limitations on the ownership and acquisition of shares of Series B Preferred Stock.
(a)
Definitions
.
For the purposes of this Section 8, the following terms shall have the following meanings:
“Act” shall mean the General Corporation Law of Maryland.
“Beneficial Ownership” shall mean ownership of Series B Preferred Stock by a Person who would be treated as an
owner of such shares of Series B Preferred Stock either directly or constructively through the application of Section 544 of the Code, as modified by Section 856(h) of the Code. The terms “Beneficial Owner,” “Beneficially
Owns” and “Beneficially Owned” shall have the correlative meanings.
“Charitable
Trust” shall mean the trust created pursuant to subparagraph (c)(i) of this Section 8.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time. All section references to
the Code shall include any successor provisions thereof as may be adopted from time to time.
“Constructive Ownership” shall mean ownership of Series B Preferred Stock by a Person who would be treated as
an owner of such shares of Series B Preferred Stock either directly or constructively through the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Owner,”
“Constructively Owns” and “Constructively Owned” shall have the correlative meanings.
“Holder” shall mean the record holder of shares of Series B Preferred Stock, or in the case of shares held by a
Purported Record Transferee, the Charitable Trust.
“Initial Date” shall mean the date upon which
the Corporation issues the Series B Preferred Stock.
“IRS” shall mean the United States Internal
Revenue Service.
“Market Price” shall mean the last reported sales price reported on the New York
Stock Exchange of Series B Preferred Stock on the trading day immediately preceding the relevant date, or if the Series B Preferred Stock is not then traded on the New York Stock Exchange, the last reported sales price of the Series B Preferred
Stock on the trading day immediately preceding the relevant date as reported on any exchange or quotation system over which the Series B Preferred Stock may be traded, or if the Series B Preferred Stock is not then traded over any exchange or
quotation system, then the market price of the Series B Preferred Stock on the relevant date as determined in good faith by the Board of Directors of the Corporation.
63
“Ownership Limit” shall mean 9.9% of the outstanding Series B
Preferred Stock of the Corporation, and after any adjustment as set forth in subparagraph (i) of this Section 8, shall mean such greater percentage.
“Partner” shall mean any Person owning Units.
“Partnership” shall mean Cedar Realty Trust Partnership, L.P., a Delaware limited partnership.
“Partnership Agreement” shall mean the Agreement of Limited Partnership of the Partnership, of which the
Corporation is the sole general partner, as amended, as such agreement may be further amended from time to time.
“Person” shall mean an individual, corporation, partnership, estate, trust, a portion of a trust permanently set aside for or to be used exclusively for the purposes described in
Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity and also includes a group as that term is used for purposes of Section 13(d)(3) of the
Exchange Act, and the rules and regulations promulgated thereunder; but does not include an underwriter which participates in a public offering of the Series B Preferred Stock provided that the ownership of Series B Preferred Stock by such
underwriter would not result in the Corporation failing to qualify as a REIT.
“Purported
Transferee” shall mean, with respect to any purported Transfer (or other event) which results in a violation of subparagraph (b) of this Section 8, the purported beneficial transferee or owner for whom the Purported Record Transferee
would have acquired or owned shares of Series B Preferred Stock, if such Transfer had been valid under such subparagraph.
“Purported Record Transferee” shall mean, with respect to any purported Transfer which results in a violation of subparagraph (b) of this Section 8, the record holder of the Series B
Preferred Stock if such Transfer had been valid under such subparagraph.
“REIT” shall mean a real
estate investment trust under Sections 856 through 860 of the Code.
“Restriction Termination Date”
shall mean the first day on which the Board of Directors of the Corporation determines that it is no longer in the best interests of the Corporation to attempt to, or continue to, qualify as a REIT.
“Transfer” shall mean any sale, issuance, transfer, gift, assignment, devise or other disposition of Series B
Preferred Stock as well as any other event that causes any Person to Beneficially Own or Constructively Own Series B Preferred Stock (including (i) the granting of any option or entering into any agreement for the sale, transfer or other
disposition of Series B Preferred Stock or (ii) the sale, transfer. assignment or other disposition of any securities or rights convertible into or exchangeable for Series B Preferred Stock), whether voluntary or involuntary, whether of record
or beneficially or Beneficially or Constructively (including but not limited to transfers of interests in other entities which result in changes in Beneficial or Constrictive Ownership of Series B Preferred Stock), and whether by operation of law or
otherwise.
64
“Trustee” shall mean the Corporation as trustee for the Charitable
Trust, and any successor trustee appointed by the Corporation.
“Units” shall mean the units into
which partnership interests of the Partnership are divided, and as the same may be adjusted, as provided in the Partnership Agreement.
(b)
Restriction on Ownership and Transfer
.
(i) Except as provided
in subparagraph (k) of this Section 8, from the Initial Date and prior to the Restriction Termination Date, no Person shall Beneficially Own shares of Series B Preferred Stock in excess of the Ownership Limit.
(ii) Except as provided in subparagraph (k) of this Section 8, from the Initial Date and prior to the Restriction Termination
Date, any Transfer that, if effective, would result in any Person Beneficially Owning Series B Preferred Stock in excess of the Ownership Limit shall be void
ab
initio
as to the Transfer of such shares of Series B Preferred Stock which
would be otherwise Beneficially Owned by such Person in excess of the Ownership Limit; and the Purported Transferee shall acquire no rights in such shares of Series B Preferred Stock.
(iii) Except as provided in subparagraph (k) of this Section 8, from the Initial Date and prior to the Restriction Termination
Date, any Transfer that, if effective, would result in the Series B Preferred Stock being Beneficially Owned by less than 100 Persons (determined without reference to any rules of attribution) shall be void
ab
initio
as to the Transfer
of such shares of Series B Preferred Stock which would be otherwise beneficially owned by the transferee; and the intended transferee shall acquire no rights in such shares of Series B Preferred Stock.
(iv) Notwithstanding any other provisions contained in this Section 8, from the Initial Date and prior to the Restriction
Termination Date, any Transfer or other event that, if effective, would result in the Corporation being “closely held” within the meaning of Section 856(h) of the Code, or would otherwise result in the Corporation failing to qualify
as a REIT (including, but not limited to, a Transfer or other event that would result in the Corporation owning (directly or Constructively) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by
the Corporation from such tenant would cause the Corporation to fail to satisfy, any of the gross income requirements of Section 856(c) of the Code), shall be void
ab
initio
as to the Transfer of the shares of Series B Preferred
Stock which would cause the Corporation to be “closely held” within the meaning of Section 856(h) of the Code or would otherwise result in the Corporation failing to qualify as a REIT; and the intended transferee or owner or
Constructive or Beneficial Owner shall acquire or retain no rights in such shares of Series B Preferred Stock.
(c)
Effect of Transfer in Violation of Subparagraph 8(b)
.
(i) If, notwithstanding the other provisions contained
in this Section 8, at any time after the Initial Date and prior to the Restriction Termination Date, there is a
65
purported Transfer, or change in the capital structure of the Corporation, or other event such that one or more of the restrictions on ownership and transfers described in subparagraph
(b) of this Section 8 has been violated, then the shares of Series B Preferred Stock being Transferred (or in the case of an event other than a Transfer, the shares owned or Constructively Owned or Beneficially Owned) which would cause one
or more of the restrictions on ownership or transfer to be violated (rounded up to the nearest whole share) (the “Trust Shares”), shall automatically be transferred to the Corporation, as Trustee of a trust (the “Charitable
Trust”) for the exclusive benefit of The American Cancer Society (the “Designated Charity”), an organization described in Section 170(b)(1)(A ) and 170(c) of the Code. The Purported Transferee shall have no rights in such Trust
Shares.
(ii) The Corporation, as Trustee of the Charitable Trust, may transfer the shares held in such trust to a Person
whose ownership of the shares will not result in a violation of the ownership restrictions (a “Permitted Transferee”). If such a transfer is made, the interest of the Designated Charity will terminate and proceeds of the sale will be
payable to the Purported Transferee and to the Designated Charity. The Purported Transferee will receive the lesser of (1) the price paid by the Purported Transferee for the shares or, if the Purported Transferee did not give value for the
shares, the Market Price of the shares on the day of the event causing the shares to be held in trust, and (2) the price per share received by the Corporation, as Trustee, from the sale or other disposition of the shares held in trust. The
Designated Charity will receive any proceeds in excess of the amount payable to the Purported Transferee. The Purported Transferee will not be entitled to designate a Permitted Transferee.
(iii) All stock held in the Charitable Trust will be deemed to have been offered for sale to the Corporation or its designee for a
90-day
period, at the lesser of the price paid for that stock by the Purported Transferee and the Market Price on the date that the Corporation accepts the offer. This period will commence on the date of the
violative transfer, if the Purported Transferee gives notice to the Corporation of the transfer, or the date that the Board of Directors of the Corporation determines that a violative transfer occurred, if no such notice is provided.
(iv) Any dividend or distribution paid prior to the discovery by the Corporation that shares of Series B Preferred Stock have been
transferred in violation of subparagraph (b) of this Section 8, shall be repaid to the Corporation upon demand and shall be held in trust for the Designated Charity. Any dividend or distribution declared but unpaid shall be rescinded as
void
ab
initio
with respect to such shares of stock.
(v) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, the Designated Charity shall be entitled to receive, ratably with each other holder of Series B Preferred Stock, that portion of the assets of the
Corporation available for distribution to its stockholders as the number of Trust Shares bears to the total number of shares of Series B Preferred Stock then outstanding (including the Trust Shares). The Corporation, as Trustee, or if the
Corporation shall have been dissolved, any trustee appointed by the Corporation prior to its dissolution, shall distribute to the Designated Charity, when determined (or if not determined, or only partially determined, ratably to the other holders
of Series B Preferred Stock who have been determined and the Designated Charity), any such assets received in respect of the Trust Shares in any liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation.
66
(vi) The Purported Transferee will not be entitled to vote any Series B Preferred Stock it
attempts to acquire, and any stockholder vote will be rescinded if a Purported Transferee votes and the stockholder vote would have been decided differently if such Purported Transferee’s vote was not counted.
(d)
Remedies for Breach
.
If the Board of Directors or its designees shall at any time determine in good faith that a
Transfer or other event has taken place in violation of subparagraph (b) of this Section 8 or that a Person intends to acquire or has attempted to acquire beneficial ownership (determined without reference to any rules of attribution),
Beneficial Ownership or Constructive Ownership of any shares of Series B Preferred Stock in violation of subparagraph (b) of this Section 8, the Corporation shall inform the Purported Transferee of its obligations pursuant to this
Section 8, including such Purported Transferee’s obligations to pay over to the Charitable Trust any and all dividends received with respect to the Trust Shares. In addition, the Board of Directors or its designees shall take such action
as it deems advisable to refuse to give effect or to prevent such Transfer, including, but not limited to, refusing to give effect to such Transfer on the books of the Corporation or instituting proceedings to enjoin such Transfer and to recover any
dividend erroneously paid and declaring any votes erroneously cast to be retroactively invalid; provided, however, that any Transfers (or, in the case of events other than a Transfer, ownership or Constructive Ownership or Beneficial Ownership) in
violation of subparagraph (b) of this Section 8 shall automatically result in a transfer to the Charitable Trust as described in subparagraph (c) of this Section 8, irrespective of any action (or
non-action)
by the Board of Directors.
(e)
Notice of Restricted
Transfer
.
Any Person who acquires or attempts to acquire shares of Series B Preferred Stock in violation of subparagraph (b) of this Section 8, or any Person who is a Purported Transferee, shall immediately give written notice to
the Corporation of such event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such Transfer or attempted Transfer on the Corporation’s status as a REIT.
(f)
Owners Required To Provide Information
.
From the Initial Date and prior to the Restriction Termination
Date each Person who is a beneficial owner or Beneficial Owner or Constructive Owner of Series B Preferred Stock and each Person (including the stockholder of record) who is holding Series B Preferred Stock for a Beneficial Owner or Constructive
Owner shall provide to the Corporation such information that the Corporation may request, in good faith, in order to determine the Corporation’s status as a REIT.
(g)
Remedies Not Limited
.
Nothing contained in this Section 8 shall limit the authority of the Board of Directors to take such other action as it deems necessary or advisable to protect
the Corporation and the interests of its stockholders by preservation of the Corporation’s status as a REIT.
(h)
Ambiguity
.
In the case of an ambiguity in the application of any of the provisions of this Section 8, including any definition contained in subparagraph (a) of this Section 8, the Board of Directors shall have the power
to determine the application of the provisions of this Section 8 with respect to any situation based on the facts known to it.
67
(i)
Modification of Ownership Limit
.
Subject to the limitations provided in
subparagraph (j) of this Section 8, the Board of Directors may from time to time increase the Ownership Limit and shall file Articles Supplementary with the State Department of Assessment and Taxation of Maryland to evidence such increase.
(j)
Limitations on Modifications
.
(i) From the Initial Date and prior to the Restriction Termination Date, the Ownership Limit may not be increased if, after giving effect to such increase, five Persons who are Beneficial Owners of Series
B Preferred Stock could (taking into account the Ownership Limit) Beneficially Own, in the aggregate, more than 49.5% of the outstanding Series B Preferred Stock.
(ii) Prior to the modification of any Ownership Limit pursuant to subparagraph (i) of this Section 8, the Board of Directors of the Corporation may require such opinions of counsel, affidavits,
undertakings or agreements as it may deem necessary or advisable in order to determine or ensure the Corporation’s status as a REIT.
(k)
Exceptions
.
(i) The Board of Directors, in its sole
discretion, may exempt a Person from the Ownership Limit, if such Person is not an individual for purposes of Section 542(a)(2) of the Code and the Board of Directors obtains such representations and undertakings from such Person as are
reasonably necessary to ascertain that no individual’s Beneficial Ownership of such shares of Series B Preferred Stock will violate the Ownership Limit, and agrees that any violation of such representations or undertaking (or other action which
is contrary to the restrictions contained in this subparagraph (k) of this Section 8) or attempted violation will result in such shares of Series B Preferred Stock automatically being transferred to the Charitable Trust.
(ii) Prior to granting any exception pursuant to subparagraph (k)(i) of this Section 8, the Board of Directors may require a ruling
from the IRS, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Corporation’s status as a
REIT.
(l)
Legend
.
Each certificate for shares of Series B Preferred Stock shall bear legends substantially to
the effect of the following:
“The Corporation is authorized to issue two classes of capital stock which are designated
as Common Stock and Preferred Stock. The Board of Directors is authorized to determine the preferences, limitations and relative rights of the Preferred Stock before the issuance of any Preferred Stock. The Corporation will furnish, without charge,
to any stockholder making a written request therefor, a copy of the Corporation’s charter and a written statement of the designations, relative rights, preferences and limitations applicable to each such
68
class of stock. Requests for the Corporation’s charter and such written statement may be directed to Cedar Realty Trust, Inc., 44 South Bayles Avenue, Port Washington, New York 11050,
Attention: Secretary.
The shares of Series B Preferred Stock represented by this certificate are subject to restrictions on
ownership and Transfer for the purpose of the Corporation’s maintenance of its status as a Real Estate Investment Trust under the Code. No Person may Beneficially Own shares of Series B Preferred Stock in excess of 9.9% (or such greater
percentage as may be determined by the Board of Directors of the Corporation) of the outstanding Series B Preferred Stock of the Corporation with certain exceptions set forth in the Corporation’s charter. Any Person who attempts to Beneficially
Own shares of Series B Preferred Stock in excess of the above limitations must immediately notify the Corporation. All capitalized terms in this legend have the meanings defined in the Corporation’s charter. Transfers in violation of the
restrictions described above may be void
ab
initio
.
In addition, upon the occurrence of certain events, if the
restrictions on ownership are violated, the shares of Series B Preferred Stock represented hereby may be automatically exchanged for Trust Shares which will be held in trust by the Corporation. The Corporation has an option to acquire Trust Shares
under certain circumstances. The Corporation will furnish to the holder hereof upon request and without charge a complete written statement of the terms and conditions of the Trust Shares. Requests for such statement may be directed to Cedar Realty
Trust, Inc., 44 South Bayles Avenue, Port Washington, New York 11050, Attention: Secretary.”
(m)
Severability
.
If any provision of this Section 8 or any application of any such provision is determined to be invalid by any Federal or state court having jurisdiction over the issues, the validity of the remaining provisions shall not be affected and other
applications of such provision shall be affected only to the extent necessary to comply with the determination of such court.
(9)
Information Rights
. During any period in which the Corporation is not subject to the reporting requirements of Section 13
or Section 15(d) of the Exchange Act and any Series B Preferred Stock are outstanding, the Corporation will (i) transmit by mail or other permissible means under the Exchange Act to all holders of Series B Preferred Stock as their names
and addresses appear in the Corporation’s record books and without cost to such holders, copies of the annual reports on Form
10-K
and quarterly reports on Form
10-Q
that the Corporation would have been required to file with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13 or Section 15(d) of the Exchange Act if the
Corporation were subject thereto (other than any exhibits that would have been required) and (ii) within 15 days following written request, supply copies of such reports to any prospective holder of the Series B Preferred Stock. The Corporation
will mail (or otherwise provide) the reports to the holders of Series B Preferred Stock within 15 days after the respective dates by which the Corporation would have been required to file such reports with the SEC if it were subject to
Section 13 or Section 15(d) of the Exchange Act.
(10)
Status
. Upon any redemption of shares of Series B
Preferred Stock, the shares of Series B Preferred Stock which are redeemed will be reclassified as authorized and unissued shares of Preferred Stock, and the number of shares of Series B Preferred Stock which
69
the Corporation has the authority to issue will be decreased by the redemption of shares of Series B Preferred Stock, so that the shares of Series B Preferred Stock which were redeemed may not be
reissued.
(11)
Exclusion of Other Rights
. The shares of Series B Preferred Stock shall not have any preferences,
conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption other than those specifically set forth in these Articles Supplementary. The shares of
Series B Preferred Stock shall have no preemptive or subscription rights.
(12)
Headings of Subdivisions
. The headings
of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.
(13)
Severability of Provisions
. If any preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or
conditions of redemption of the Series B Preferred Stock set forth in the Charter is invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of Series B Preferred Stock set forth in the Charter which can be given effect without the invalid, unlawful or unenforceable
provision thereof shall, nevertheless, remain in full force and effect, and no preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of
redemption of Series B Preferred Stock herein set forth shall be deemed dependent upon any other provision thereof unless so expressed therein.
SECOND
: The Shares have been classified and designated by the Board of Directors under the authority contained in the Charter.
THIRD
: These Articles Supplementary have been approved by the Board of Directors in the manner and by the vote required by law.
FOURTH
: The undersigned President of the Corporation acknowledges these Articles Supplementary to be the corporate act
of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and
that this statement is made under the penalties for perjury.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
70
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be executed under seal in its name and on its behalf by its President and attested to by its Secretary on this 15
th
of May, 2012.
|
|
|
|
|
|
|
ATTEST:
|
|
|
|
CEDAR REALTY TRUST, INC.
|
|
|
|
|
|
/s/ Stuart H. Widowski
|
|
|
|
/s/ Bruce J. Schanzer
|
|
Stuart H. Widowski, Secretary
|
|
|
|
Bruce J. Schanzer, President
|
CERTIFICATE OF CORRECTION
TO
CEDAR REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
7.25% Series B Cumulative Redeemable Preferred
Stock
Cedar Realty Trust, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State
Department of Assessments and Taxation of Maryland that:
1. Articles Supplementary relating to the Corporation’s 7.25%
Series B Cumulative Redeemable Preferred Stock (“Articles Supplementary”) were filed with the State Department of Assessments and Taxation of Maryland on May 15, 2012, and that said Articles Supplementary require correction as
permitted by the laws of the State of Maryland.
2. The third sentence of “Article FIRST, Section 3(a),
Distributions” of the Articles Supplementary incorrectly read: “The first distribution on the Series B Preferred Stock shall be paid on August 20, 2012, will be for more than a full quarter and will reflect distributions accumulated
from the date of original issuance through August 20, 2012.”
3. The third sentence of “Article FIRST,
Section 3(a), Distributions” of the Articles Supplementary is hereby corrected to read: “The first distribution on the Series B Preferred Stock shall be paid on August 20, 2012, will be for less than a full quarter and will
reflect distributions accumulated from the date of original issuance through August 20, 2012.”, by changing the word “more” to “less.”
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Correction to be executed under seal in its name and on its behalf by its President and attested to by its Secretary on this 24
th
of May, 2012.
|
|
|
|
|
|
|
ATTEST:
|
|
|
|
CEDAR REALTY TRUST, INC.
|
|
|
|
|
|
/s/ STUART H. WIDOWSKI
|
|
|
|
/s/ BRUCE J. SCHANZER
|
|
Stuart H. Widowski, Secretary
|
|
|
|
Bruce J. Schanzer, President
|
73
CEDAR REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
7.25% Series B Cumulative Redeemable Preferred Stock
Cedar Realty
Trust, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland (the “Department”) that:
FIRST
: By Articles Supplementary filed with the Department on May 15, 2012 (the “May 15 Articles Supplementary”), the
Corporation classified and designated 400,000 shares of Preferred Stock (as defined in the Charter (defined below)) as shares of 7.25% Series B Cumulative Redeemable Preferred Stock (the “Series B Preferred Stock”), and set the
preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, terms and conditions of redemption and other terms and conditions of such Series B Preferred Stock.
SECOND
: Under a power contained in Article IV of the Articles of Incorporation of the Corporation, as amended and
supplemented (the “Charter”), the Board of Directors of the Corporation (the “Board of Directors”), by resolution duly adopted as of May 24, 2012, classified and designated an additional 5,000,000 shares of Preferred Stock as
Series B Preferred Stock (the “Additional Shares of Series B Preferred Stock”) and provided for the issuance thereof. The Additional Shares of Series B Preferred Stock form a single series with and have the same preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the Series B Preferred Stock established pursuant to the May 15 Articles
Supplementary, all as set forth in the May 15 Articles Supplementary. Upon any restatement of the Charter, Sections 1 and 2 of this Article SECOND shall become part of Article IV of the Charter, with such changes in enumeration as are necessary to
complete such restatement.
Section 1.
Number, Preferences and Other Rights.
The number of Additional Shares of Series
B Preferred Stock shall be 5,000,000 and shall form a single series with the 400,000 shares of Series B Preferred Stock established pursuant to the May 15 Articles Supplementary for a total of 5,400,000 shares of Preferred Stock classified and
designated as shares of Series B Preferred Stock. The Additional Shares of Series B Preferred Stock shall have the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions,
qualifications and terms and conditions of redemption of shares of stock as the 400,000 shares of Series B Preferred Stock established pursuant to the May 15 Articles Supplementary, all as set forth in the May 15 Articles Supplementary. The par
value of the Additional Shares of Series B Preferred Stock shall be $.01 per share.
Section 2.
Distributions.
Holders
of the Additional Shares of Series B Preferred Stock shall be entitled to receive the full amount of all distributions payable in respect of the
Series B Preferred Stock from the Distribution Payment Date immediately preceding the date of original issuance of the Additional Shares of Series B Preferred Stock (or, with respect to
Additional Shares issued on or before the record date for the payment of the distribution payable on August 20, 2012, from May 22, 2012) but shall not be entitled to receive any distributions paid or payable with regard to Series B Preferred Stock
prior to such Distribution Payment Date.
THIRD
: The Additional Shares of Series B Preferred Stock have been classified
and designated by the Board of Directors under the authority contained in the Charter.
FOURTH
: These Articles
Supplementary have been approved by the Board of Directors in the manner and by the vote required by law.
FIFTH
: The
undersigned President of the Corporation acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best
of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
75
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed
under seal in its name and on its behalf by its President and attested to by its Secretary on this
29
th of May, 2012.
|
|
|
|
|
ATTEST:
|
|
CEDAR REALTY TRUST, INC.
|
|
|
|
|
/s/ Stuart H. Widowski
|
|
/s/ Bruce J. Scharzer
|
|
Stuart H. Widowski, Secretary
|
|
Bruce J. Scharzer, President
|
CEDAR REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
7.25% Series B Cumulative Redeemable Preferred Stock
Cedar Realty
Trust, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland (the “Department”) that:
FIRST
: By Articles Supplementary filed with the Department on May 15, 2012 (the “May 15 Articles
Supplementary”), the Corporation classified and designated 400,000 shares of Preferred Stock (as defined in the Charter (defined below)) as shares of 7.25% Series B Cumulative Redeemable Preferred Stock (the “Series B Preferred
Stock”), and set the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, terms and conditions of redemption and other terms and conditions of such Series B
Preferred Stock. By Articles Supplementary filed with the Department on May 29, 2012 (the “May 29 Articles Supplementary”), the Corporation classified and designated an additional 5,000,000 shares of Preferred Stock as Series B
Preferred Stock, forming a single series with and having the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, terms and conditions of redemption of
shares of stock as the Series B Preferred Stock established pursuant to the May 15 Articles Supplementary.
SECOND
: Under a power contained in Article IV of the Articles of Incorporation of the Corporation, as amended and
supplemented (the “Charter”), the Board of Directors of the Corporation (the “Board of Directors”), by resolution duly adopted as of September 10, 2012, classified and designated an additional 700,000 shares of Preferred
Stock as Series B Preferred Stock (the “Additional Shares of Series B Preferred Stock”) and provided for the issuance thereof. The Additional Shares of Series B Preferred Stock form a single series with and have the same preferences,
conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the Series B Preferred Stock established pursuant to the
May 15 Articles Supplementary and the May 29 Articles Supplementary, all as set forth in the May 15 Articles Supplementary and the May 29 Articles Supplementary. Upon any restatement of the Charter, Sections 1 and 2 of this
Article SECOND shall become part of Article IV of the Charter, with such changes in enumeration as are necessary to complete such restatement.
Section 1.
Number, Preferences and Other Rights
. The number of Additional Shares of Series B Preferred Stock shall be 700,000 and shall form a single series with the 5,400,000 shares
of Series B Preferred Stock established pursuant to the May 15 Articles Supplementary and the May 29 Articles Supplementary, for a total of 6,100,000 shares of Preferred Stock classified and designated as shares of Series B Preferred
Stock. The Additional Shares of Series B Preferred Stock shall have the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of
redemption of shares of stock as the 5,400,000 shares of Series B Preferred Stock established pursuant to the May 15 Articles Supplementary and the May 29 Articles Supplementary, all as set forth in the May 15 Articles Supplementary
and the May 29 Articles Supplementary. The par value of the Additional Shares of Series B Preferred Stock shall be $.01 per share.
Section 2.
Distributions
. Holders of the Additional Shares of Series B
Preferred Stock shall be entitled to receive the full amount of all distributions payable in respect of the Series B Preferred Stock from the Distribution Payment Date immediately preceding the date of original issuance of the Additional Shares of
Series B Preferred Stock, but shall not be entitled to receive any distributions paid or payable with regard to Series B Preferred Stock prior to such Distribution Payment Date.
THIRD
: The Additional Shares of Series B Preferred Stock have been classified and designated by the Board of Directors under
the authority contained in the Charter.
FOURTH
: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH
: The undersigned President of the Corporation
acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge, information and
belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed under seal in its name and on its behalf by its President and attested to by its Secretary on this 13th day of
September, 2012.
|
|
|
|
|
|
|
ATTEST:
|
|
|
|
CEDAR REALTY TRUST, INC.
|
|
|
|
|
|
/s/ Stuart H. Widowski
|
|
|
|
/s/ Bruce J. Schanzer
|
|
Stuart H. Widowski, Secretary
|
|
|
|
Bruce J. Schanzer, President
|
CEDAR REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
8
7
/
8
% Series A Cumulative Redeemable Preferred Stock
Cedar Realty
Trust, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland (the “Department”) that:
Article I.
FIRST
: By Articles Supplementary filed with the Department on July 27, 2004 (the “July 2004
Articles Supplementary”), the Corporation classified and designated 2,350,000 shares of Preferred Stock (as defined in the Charter (defined below)) as shares of
8
7
/
8
% Series A Cumulative Redeemable Preferred Stock (the “Series A Preferred Stock”), and set the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends
and other distributions, qualifications, terms and conditions of redemption and other terms and conditions of such Series A Preferred Stock. By Articles Supplementary filed with the Department on April 1, 2005 (the “April 2005
Articles Supplementary”), the Corporation classified and designated an additional 1,200,000 shares of Preferred Stock as Series A Preferred Stock, forming a single series with and having the same preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the Series A Preferred Stock established pursuant to the July 2004 Articles Supplementary. By
Articles Supplementary filed with the Department on August 19, 2010 (the “August 2010 Articles Supplementary”), the Corporation classified and designated an additional 2,850,000 shares of Preferred Stock as Series A
Preferred Stock, forming a single series with and having the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of
shares of stock as the Series A Preferred Stock established pursuant to the July 2004 Articles Supplementary and the April 2005 Articles Supplementary. The Corporation, from time to time prior to the date hereof, has redeemed or repurchased an
aggregate of 4,990,000 shares of Series A Preferred Stock (the “Redeemed Preferred Stock”).
Article
II.
SECOND
: Under a power contained in Article IV of the Articles of Incorporation of the Corporation, as amended and supplemented (the “Charter”), the Board of Directors of the Corporation (the “Board of
Directors”), has determined to reduce the number of outstanding shares of Series A Preferred Stock by the number of Redeemed Preferred Stock and to return such Redeemed Preferred Stock to the category of authorized but unissued Preferred
Stock. Upon any restatement of the Charter, Section 1 of this Article SECOND shall become part of Article IV of the Charter, with such changes in enumeration as are necessary to complete such restatement.
Section 1.
Number, Preferences and Other Rights.
As the result of the Redeemed Preferred Stock, the number of
authorized shares of Series A Preferred Stock shall be reduced from 6,400,000 shares to 1,410,000 shares.
THIRD
: The shares of Series A Preferred Stock have been reduced by the Board of
Directors under the authority contained in the Charter.
FOURTH
: These Articles Supplementary have been approved
by the Board of Directors in the manner and by the vote required by law.
FIFTH
: The undersigned President of the
Corporation acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge,
information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed
on its behalf by its President and attested to by its Secretary on this 19th day of November, 2012.
|
|
|
|
|
|
|
ATTEST:
|
|
|
|
CEDAR REALTY TRUST, INC.
|
|
|
|
|
|
/s/ Stuart H. Widowski
|
|
|
|
/s/ Bruce J. Schanzer
|
|
Stuart H. Widowski, Secretary
|
|
|
|
Bruce J. Schanzer, President
|
81
CEDAR REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
7.25% Series B Cumulative Redeemable Preferred Stock
Cedar Realty
Trust, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland (the “Department”) that:
FIRST
: By Articles Supplementary filed with the Department on May 15, 2012 (the “May 15 Articles Supplementary”),
the Corporation classified and designated 400,000 shares of Preferred Stock (as defined in the Charter (defined below)) as shares of 7.25% Series B Cumulative Redeemable Preferred Stock (the “Series B Preferred Stock”), and set the
preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, terms and conditions of redemption and other terms and conditions of such Series B Preferred Stock. By
Articles Supplementary filed with the Department on May 29, 2012 (the “May 29 Articles Supplementary”), the Corporation classified and designated an additional 5,000,000 shares of Preferred Stock as Series B Preferred Stock, forming a
single series with and having the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, terms and conditions of redemption of shares of stock as the Series B
Preferred Stock established pursuant to the May 15 Articles Supplementary. By Articles Supplementary filed with the Department on September 13, 2012 (the “September Articles Supplementary”), the Corporation classified and designated
an additional 700,000 shares of Preferred Stock as Series B Preferred Stock, forming a single series with and having the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions,
qualifications, terms and conditions of redemption of shares of stock as the Series B Preferred Stock established pursuant to the May 15 Articles Supplementary and the May 29 Articles Supplementary.
SECOND
: Under a power contained in Article IV of the Articles of Incorporation of the Corporation, as amended and
supplemented (the “Charter”), the Board of Directors of the Corporation (the “Board of Directors”), by resolution duly adopted, classified and designated an additional 1,400,000 shares of Preferred Stock as Series B Preferred
Stock (the “Additional Shares of Series B Preferred Stock”) and provided for the issuance thereof. The Additional Shares of Series B Preferred Stock form a single series with and have the same preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the Series B Preferred Stock established pursuant to the May 15 Articles Supplementary, the
May 29 Articles Supplementary and the September Articles Supplementary, all as set forth in the May 15 Articles Supplementary, the May 29 Articles Supplementary and the September Articles Supplementary. Upon any restatement of the Charter,
Sections 1 and 2 of this Article SECOND shall become part of Article IV of the Charter, with such changes in enumeration as are necessary to complete such restatement.
Section 1.
Number, Preferences and Other Rights
. The number of Additional Shares
of Series B Preferred Stock shall be 1,400,000 and shall form a single series with the 6,100,000 shares of Series B Preferred Stock established pursuant to the May 15 Articles Supplementary, the May 29 Articles Supplementary and the September
Articles Supplementary, for a total of 7,500,000 shares of Preferred Stock classified and designated as shares of Series B Preferred Stock. The Additional Shares of Series B Preferred Stock shall have the same preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the 6,100,000 shares of Series B Preferred Stock established pursuant to the May 15
Articles Supplementary, the May 29 Articles Supplementary and the September Articles Supplementary, all as set forth in the May 15 Articles Supplementary, the May 29 Articles Supplementary and the September Articles Supplementary. The par value
of the Additional Shares of Series B Preferred Stock shall be $.01 per share.
Section
2.
Distributions
. Holders of the Additional Shares of Series B Preferred Stock shall be entitled to receive the full amount of all distributions payable in respect of the Series B Preferred Stock from the Distribution Payment Date
immediately preceding the date of original issuance of the Additional Shares of Series B Preferred Stock, but shall not be entitled to receive any distributions paid or payable with regard to Series B Preferred Stock prior to such Distribution
Payment Date.
THIRD
: The Additional Shares of Series B Preferred Stock have been classified and designated by the
Board of Directors under the authority contained in the Charter.
FOURTH
: These Articles Supplementary have been
approved by the Board of Directors in the manner and by the vote required by law.
FIFTH
: The undersigned
President of the Corporation acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his
knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed
under seal in its name and on its behalf by its President and attested to by its Secretary on this 20th day of November, 2012.
|
|
|
|
|
|
|
ATTEST:
|
|
|
|
CEDAR REALTY TRUST, INC.
|
|
|
|
|
|
/s/ Stuart H. Widowski
|
|
|
|
/s/ Bruce J. Schanzer
|
|
Stuart H. Widowski, Secretary
|
|
|
|
Bruce J. Schanzer, President
|
84
CEDAR REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
7.25% Series B Cumulative Redeemable Preferred Stock
Cedar Realty
Trust, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland (the “Department”) that:
FIRST
: By Articles Supplementary filed with the Department on May 15, 2012 (the “May 15 Articles Supplementary”),
the Corporation classified and designated 400,000 shares of Preferred Stock (as defined in the Charter (defined below)) as shares of 7.25% Series B Cumulative Redeemable Preferred Stock (the “Series B Preferred Stock”), and set the
preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, terms and conditions of redemption and other terms and conditions of such Series B Preferred Stock. By
Articles Supplementary filed with the Department on May 29, 2012 (the “May 29 Articles Supplementary”), the Corporation classified and designated an additional 5,000,000 shares of Preferred Stock as Series B Preferred Stock, forming a
single series with and having the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, terms and conditions of redemption of shares of stock as the Series B
Preferred Stock established pursuant to the May 15 Articles Supplementary. By Articles Supplementary filed with the Department on September 13, 2012 (the “September Articles Supplementary”), the Corporation classified and
designated an additional 700,000 shares of Preferred Stock as Series B Preferred Stock, forming a single series with and having the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications, terms and conditions of redemption of shares of stock as the Series B Preferred Stock established pursuant to the May 15 Articles Supplementary and the May 29 Articles Supplementary. By Articles Supplementary
filed with the Department on November 20, 2012 (the “November Articles Supplementary”), the Corporation classified and designated an additional 1,400,000 shares of Preferred Stock as Series B Preferred Stock, forming a single series
with and having the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, terms and conditions of redemption of shares of stock as the Series B Preferred
Stock established pursuant to the May 15 Articles Supplementary, the May 29 Articles Supplementary and the September Articles Supplementary.
SECOND
: Under a power contained in Article IV of the Articles of Incorporation of the Corporation, as amended and supplemented (the “Charter”), the Board of Directors of the Corporation
(the “Board of Directors”), by resolution duly adopted, classified and designated an additional 2,500,000 shares of Preferred Stock as Series B Preferred Stock (the “Additional Shares of Series B Preferred Stock”) and provided
for the issuance thereof. The Additional
85
Shares of Series B Preferred Stock form a single series with and have the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of shares of stock as the Series B Preferred Stock established pursuant to the May 15 Articles Supplementary, the May 29 Articles Supplementary, the September Articles
Supplementary and the November Articles Supplementary, all as set forth in the May 15 Articles Supplementary, the May 29 Articles Supplementary, the September Articles Supplementary and the November Articles Supplementary. Upon any
restatement of the Charter, Sections 1 and 2 of this Article SECOND shall become part of Article IV of the Charter, with such changes in enumeration as are necessary to complete such restatement.
Section 1.
Number, Preferences and Other Rights.
The number of Additional Shares of Series B Preferred Stock shall be
2,500,000 and shall form a single series with the 7,500,000 shares of Series B Preferred Stock established pursuant to the May 15 Articles Supplementary, the May 29 Articles Supplementary, the September Articles Supplementary and the
November Articles Supplementary, for a total of 10,000,000 shares of Preferred Stock classified and designated as shares of Series B Preferred Stock. The Additional Shares of Series B Preferred Stock shall have the same preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the 7,500,000 shares of Series B Preferred Stock established pursuant to the
May 15 Articles Supplementary, the May 29 Articles Supplementary, the September Articles Supplementary and the November Articles Supplementary, all as set forth in the May 15 Articles Supplementary, the May 29 Articles
Supplementary, the September Articles Supplementary and the November Articles Supplementary. The par value of the Additional Shares of Series B Preferred Stock shall be $.01 per share.
Section 2.
Distributions.
Except as otherwise provided, holders of the Additional Shares of Series B Preferred Stock shall be
entitled to receive the full amount of all distributions payable in respect of the Series B Preferred Stock from the Distribution Payment Date immediately preceding the date of original issuance of the Additional Shares of Series B Preferred Stock,
but shall not be entitled to receive any distributions paid or payable with regard to Series B Preferred Stock prior to such Distribution Payment Date.
THIRD
: The Additional Shares of Series B Preferred Stock have been classified and designated by the Board of Directors under the authority contained in the Charter.
FOURTH
: These Articles Supplementary have been approved by the Board of Directors in the manner and by the vote required by law.
FIFTH
: The undersigned President of the Corporation acknowledges these Articles Supplementary to be the corporate act
of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and
that this statement is made under the penalties for perjury.
86
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed
under seal in its name and on its behalf by its President and attested to by its Secretary on this 8th day of February, 2013.
|
|
|
|
|
|
|
|
|
ATTEST:
|
|
|
|
|
|
CEDAR REALTY TRUST, INC.
|
|
|
|
|
|
|
/s/ Stuart H. Widowski
|
|
|
|
|
|
/s/ Bruce J. Schanzer
|
|
Stuart H. Widowski, Secretary
|
|
|
|
|
|
Bruce J. Schanzer, President
|
87
CEDAR REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
8
7
/
8
% Series A Cumulative Redeemable Preferred Stock
Cedar Realty Trust, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and
Taxation of Maryland (the “Department”) that:
Article I.
FIRST
: By Articles Supplementary filed with the Department on July 27,
2004 (the “July 2004 Articles Supplementary”), the Corporation classified and designated 2,350,000 shares of Preferred Stock (as defined in the Charter (defined below)) as shares of 8
7
⁄
8
% Series A Cumulative Redeemable Preferred Stock (the “Series A Preferred Stock”), and set the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and
other distributions, qualifications, terms and conditions of redemption and other terms and conditions of such Series A Preferred Stock. By Articles Supplementary filed with the Department on April 1, 2005 (the “April 2005 Articles
Supplementary”), the Corporation classified and designated an additional 1,200,000 shares of Preferred Stock as Series A Preferred Stock, forming a single series with and having the same preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the Series A Preferred Stock established pursuant to the July 2004 Articles Supplementary. By Articles
Supplementary filed with the Department on August 19, 2010 (the “August 2010 Articles Supplementary”), the Corporation classified and designated an additional 2,850,000 shares of Preferred Stock as Series A Preferred Stock, forming a
single series with and having the same preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of shares of stock as the Series
A Preferred Stock established pursuant to the July 2004 Articles Supplementary and the April 2005 Articles Supplementary. By Articles Supplementary filed with the Department on November 19, 2012, the Corporation reduced the number of
outstanding shares of Series A Preferred Stock to 1,410,000 shares. The Corporation, from time to time prior to the date hereof, has redeemed or repurchased all the remaining 1,410,000 authorized shares of Series A Preferred Stock (the
“Redeemed Preferred Stock”).
Article II.
SECOND
: Under a power contained in Article IV of the Articles of Incorporation of the
Corporation, as amended and supplemented (the “Charter”), the Board of Directors of the Corporation (the “Board of Directors”), has determined to reduce the number of outstanding shares of Series A Preferred Stock by the number
of Redeemed Preferred Stock, to return such Redeemed Preferred Stock to the category of authorized but unissued Preferred Stock and to eliminate all authorized shares of Series A Preferred Stock. Upon any restatement of the Charter, Section 1
of this Article SECOND shall become part of Article IV of the Charter, with such changes in enumeration as are necessary to complete such restatement.
Section 1.
Number, Preferences and Other Rights.
As the result of the Redeemed
Preferred Stock, the number of authorized shares of Series A Preferred Stock shall be reduced from 1,410,000 shares to 0 shares. As the result, the shares of Series A Preferred Stock shall completely be eliminated and there are no longer any
authorized shares of Series A Preferred Stock.
THIRD
: The shares of Series A Preferred Stock have been eliminated by the Board of
Directors under the authority contained in the Charter.
FOURTH
: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH
: The undersigned President of the Corporation acknowledges these
Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge, information and belief, these matters and
facts are true in all material respects and that this statement is made under the penalties for perjury.
2
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed on its
behalf by its President and attested to by its Secretary on this 11th day of March, 2013.
|
|
|
|
|
|
|
ATTEST:
|
|
|
|
CEDAR REALTY TRUST, INC.
|
|
|
|
|
|
/s/ Stuart H. Widowski
|
|
|
|
/s/ Bruce J. Schanzer
|
|
Stuart H. Widowski, Secretary
|
|
|
|
Bruce J. Schanzer, President
|
3
Exhibit 10.5
LOAN AGREEMENT
Dated as of
February 11, 2014
Among
CEDAR REALTY TRUST PARTNERSHIP, L.P.
as Borrower
THE LENDERS FROM TIME
TO TIME PARTY HERETO
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent
KEYBANC
CAPITAL MARKETS, CAPITAL ONE, NATIONAL ASSOCIATION,
MANUFACTURERS AND TRADERS TRUST COMPANY and REGIONS BANK
as Co- Lead Arrangers and Co-Book Managers
TD BANK, N.A.,
as Documentation
Agent
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
1.
|
|
DEFINITIONS
|
|
|
1
|
|
|
|
|
|
|
|
|
|
1.1
|
|
Defined Terms
|
|
|
1
|
|
|
|
|
1.2
|
|
Other Interpretive Provisions
|
|
|
29
|
|
|
|
|
1.3
|
|
Accounting Terms
|
|
|
29
|
|
|
|
|
1.4
|
|
Rounding
|
|
|
30
|
|
|
|
|
1.5
|
|
Times of Day
|
|
|
30
|
|
|
|
|
|
|
2.
|
|
LOAN PROVISIONS
|
|
|
30
|
|
|
|
|
|
|
|
|
|
2.1
|
|
General Loan Provisions
|
|
|
30
|
|
|
|
|
|
|
2.1.1
|
|
Loans
|
|
|
30
|
|
|
|
|
|
|
2.1.2
|
|
Procedures and Limits
|
|
|
32
|
|
|
|
|
|
|
2.1.3
|
|
Funding Procedures
|
|
|
33
|
|
|
|
|
2.2
|
|
Term of Loan.
|
|
|
33
|
|
|
|
|
|
|
2.2.1
|
|
Tranche A Term Facility
|
|
|
33
|
|
|
|
|
|
|
2.2.2
|
|
Tranche B Term Facility
|
|
|
34
|
|
|
|
|
|
|
2.2.3
|
|
Termination of Commitments
|
|
|
34
|
|
|
|
|
2.3
|
|
Interest Rate and Payment Terms
|
|
|
34
|
|
|
|
|
|
|
2.3.1
|
|
Borrower’s Options
|
|
|
34
|
|
|
|
|
|
|
2.3.2
|
|
Selection To Be Made
|
|
|
34
|
|
|
|
|
|
|
2.3.3
|
|
Notice
|
|
|
34
|
|
|
|
|
|
|
2.3.4
|
|
If No Notice
|
|
|
35
|
|
|
|
|
|
|
2.3.5
|
|
Telephonic Notice
|
|
|
35
|
|
|
|
|
|
|
2.3.6
|
|
Limits On Options
|
|
|
35
|
|
|
|
|
|
|
2.3.7
|
|
Payment and Calculation of Interest
|
|
|
35
|
|
|
|
|
|
|
2.3.8
|
|
Mandatory Principal Payments
|
|
|
35
|
|
|
|
|
|
|
2.3.9
|
|
Prepayment
|
|
|
36
|
|
|
|
|
|
|
2.3.10
|
|
Maturity
|
|
|
36
|
|
|
|
|
|
|
2.3.11
|
|
Method of Payment; Date of Credit; Administrative Agent’s Clawback
|
|
|
36
|
|
|
|
|
|
|
2.3.12
|
|
Billings
|
|
|
38
|
|
|
|
|
|
|
2.3.13
|
|
Default Rate
|
|
|
38
|
|
|
|
|
|
|
2.3.14
|
|
Late Charges
|
|
|
38
|
|
|
|
|
|
|
2.3.15
|
|
Breakage Fee
|
|
|
39
|
|
|
|
|
|
|
2.3.16
|
|
Borrower Information
|
|
|
39
|
|
|
|
|
2.4
|
|
Loan Fees.
|
|
|
40
|
|
|
|
|
|
|
2.4.1
|
|
Loan Fees
|
|
|
40
|
|
|
|
|
|
|
2.4.2
|
|
Unused Fee
|
|
|
40
|
|
|
|
|
|
|
2.4.3
|
|
Payment of Fees Generally
|
|
|
40
|
|
|
|
|
2.5
|
|
Intentionally Omitted
|
|
|
40
|
|
|
|
|
2.6
|
|
Additional Provisions Related to Interest Rate Selection.
|
|
|
40
|
|
|
|
|
|
|
2.6.1
|
|
Increased Costs
|
|
|
40
|
|
|
|
|
|
|
2.6.2
|
|
Capital Requirements
|
|
|
41
|
|
i
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.6.3
|
|
Illegality
|
|
41
|
|
|
|
|
|
2.6.4
|
|
Availability
|
|
41
|
|
|
|
|
|
2.6.5
|
|
Base Rate Advances
|
|
42
|
|
|
|
|
|
2.6.6
|
|
Delay in Requests
|
|
42
|
|
|
|
|
|
2.6.7
|
|
Mitigation
|
|
42
|
|
|
|
|
|
2.6.8
|
|
Survival
|
|
42
|
|
|
|
|
|
2.6.9
|
|
Taxes
|
|
42
|
|
|
|
2.7
|
|
Intentionally Omitted
|
|
43
|
|
|
|
2.8
|
|
Taxes
|
|
43
|
|
|
|
|
|
2.8.1
|
|
Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes
|
|
43
|
|
|
|
|
|
2.8.2
|
|
Payment of Other Taxes by the Borrower
|
|
43
|
|
|
|
|
|
2.8.3
|
|
Tax Indemnifications
|
|
44
|
|
|
|
|
|
2.8.4
|
|
Evidence of Payments
|
|
44
|
|
|
|
|
|
2.8.5
|
|
Status of Lenders; Tax Documentation
|
|
45
|
|
|
|
|
|
2.8.6
|
|
Treatment of Certain Refunds
|
|
46
|
|
|
|
2.9
|
|
Defaulting Lenders
|
|
47
|
|
|
|
|
|
2.9.1
|
|
Adjustments
|
|
47
|
|
|
|
|
|
2.9.2
|
|
Defaulting Lender Cure
|
|
48
|
|
|
|
|
|
3.
|
|
BORROWING BASE PROPERTIES
|
|
48
|
|
|
|
|
|
|
|
|
3.1
|
|
Loan Documents
|
|
48
|
|
|
|
3.2
|
|
Removal of Individual Property as a Borrowing Base Property - Borrower
|
|
49
|
|
|
|
|
|
3.2.1
|
|
Borrowing Base Compliance
|
|
49
|
|
|
|
|
|
3.2.2
|
|
Financial Covenant Compliance
|
|
49
|
|
|
|
|
|
3.2.3
|
|
No Default Upon Release
|
|
49
|
|
|
|
|
|
3.2.4
|
|
No Default Prior to Release
|
|
49
|
|
|
|
|
|
3.2.5
|
|
[Reserved]
|
|
49
|
|
|
|
|
|
3.2.6
|
|
Payment of Fees
|
|
49
|
|
|
|
3.3
|
|
Removal of Individual Property as a Borrowing Base Property - Administrative Agent
|
|
50
|
|
|
|
|
|
3.3.1
|
|
Removal Criteria
|
|
50
|
|
|
|
|
|
3.3.2
|
|
[Reserved]
|
|
50
|
|
|
|
|
|
3.3.3
|
|
Release by Administrative Agent
|
|
50
|
|
|
|
3.4
|
|
Additional Borrowing Base Property
|
|
50
|
|
|
|
|
|
4.
|
|
CONTINUING AUTHORITY OF AUTHORIZED OFFICERS
|
|
51
|
|
|
|
|
|
5.
|
|
CONDITIONS PRECEDENT
|
|
51
|
|
|
|
|
|
|
|
|
5.1
|
|
Closing Loan and Funding Initial Loan Advance
|
|
51
|
|
|
|
|
|
5.1.1
|
|
Satisfactory Loan Documents
|
|
52
|
|
|
|
|
|
5.1.2
|
|
Financial Information; No Material Change
|
|
52
|
|
|
|
|
|
5.1.3
|
|
Representations and Warranties Accurate
|
|
52
|
|
|
|
|
|
5.1.4
|
|
Lien Searches
|
|
52
|
|
|
|
|
|
5.1.5
|
|
Litigation
|
|
53
|
|
|
|
|
|
5.1.6
|
|
Formation Documents and Entity Agreements
|
|
53
|
|
|
|
|
|
5.1.7
|
|
Compliance With Laws
|
|
53
|
ii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5.1.8
|
|
Compliance With Financial Covenants
|
|
53
|
|
|
|
|
|
5.1.9
|
|
Borrowing Base Property Due Diligence
|
|
53
|
|
|
|
|
|
5.1.10
|
|
Condition of Property
|
|
54
|
|
|
|
|
|
5.1.11
|
|
Third Party Consents and Agreements
|
|
54
|
|
|
|
|
|
5.1.12
|
|
Legal and other Opinions
|
|
54
|
|
|
|
|
|
5.1.13
|
|
Repayment of Debt
|
|
54
|
|
|
|
|
|
5.1.14
|
|
No Default
|
|
54
|
|
|
|
5.2
|
|
Conditions to all Credit Extensions
|
|
54
|
|
|
|
|
|
5.2.1
|
|
Financial Covenant Compliance
|
|
54
|
|
|
|
|
|
5.2.2
|
|
No Default
|
|
55
|
|
|
|
|
|
5.2.3
|
|
Loan Notice
|
|
55
|
|
|
|
|
|
6.
|
|
REPRESENTATIONS AND WARRANTIES
|
|
55
|
|
|
|
|
|
|
|
|
6.1
|
|
Formation
|
|
55
|
|
|
|
6.2
|
|
Proceedings; Enforceability
|
|
55
|
|
|
|
6.3
|
|
Conflicts
|
|
55
|
|
|
|
6.4
|
|
Ownership and Taxpayer Identification Numbers
|
|
56
|
|
|
|
6.5
|
|
Litigation
|
|
56
|
|
|
|
6.6
|
|
Information
|
|
56
|
|
|
|
6.7
|
|
Taxes
|
|
56
|
|
|
|
6.8
|
|
Financial Information
|
|
56
|
|
|
|
6.9
|
|
Control Provisions
|
|
57
|
|
|
|
6.10
|
|
Formation Documents
|
|
57
|
|
|
|
6.11
|
|
Bankruptcy Filings
|
|
57
|
|
|
|
6.12
|
|
Investment Company
|
|
57
|
|
|
|
6.13
|
|
[Reserved]
|
|
57
|
|
|
|
6.14
|
|
Borrowing Base Properties
|
|
57
|
|
|
|
|
|
6.14.1
|
|
Licenses and Permits
|
|
57
|
|
|
|
|
|
6.14.2
|
|
Ownership
|
|
57
|
|
|
|
|
|
6.14.3
|
|
Environmental Matters
|
|
58
|
|
|
|
|
|
6.14.4
|
|
Leases
|
|
58
|
|
|
|
|
|
6.14.5
|
|
Ground Lease
|
|
59
|
|
|
|
|
|
6.14.6
|
|
Casualty/Condemnation
|
|
59
|
|
|
|
|
|
6.14.7
|
|
Property Condition
|
|
59
|
|
|
|
6.15
|
|
Margin Regulations; Use of Proceeds
|
|
59
|
|
|
|
6.16
|
|
Insurance
|
|
59
|
|
|
|
6.17
|
|
Deferred Compensation and ERISA
|
|
60
|
|
|
|
6.18
|
|
[Reserved]
|
|
60
|
|
|
|
6.19
|
|
No Default
|
|
60
|
|
|
|
6.20
|
|
Governmental Authorizations; Other Consents
|
|
60
|
|
|
|
6.21
|
|
Qualification as a REIT
|
|
60
|
|
|
|
6.22
|
|
Compliance with Laws
|
|
60
|
|
|
|
6.23
|
|
Property Matters
|
|
60
|
|
|
|
|
|
6.23.1
|
|
Major Leases
|
|
60
|
|
|
|
|
|
6.23.2
|
|
Borrowing Base Properties
|
|
60
|
|
|
|
6.24
|
|
Solvency
|
|
61
|
|
|
|
6.25
|
|
Regarding Representations and Warranties
|
|
61
|
iii
|
|
|
|
|
|
|
|
|
|
|
7.
|
|
AFFIRMATIVE COVENANTS
|
|
62
|
|
|
|
|
|
|
|
|
|
7.1
|
|
Notices
|
|
|
|
62
|
|
|
|
7.2
|
|
Financial Statements; Reports; Officer’s Certificates
|
|
62
|
|
|
|
|
|
7.2.1
|
|
Annual Statements
|
|
62
|
|
|
|
|
|
7.2.2
|
|
Periodic Statements
|
|
62
|
|
|
|
|
|
7.2.3
|
|
Borrowing Base Property Reports
|
|
63
|
|
|
|
|
|
7.2.4
|
|
SEC Reports
|
|
63
|
|
|
|
|
|
7.2.5
|
|
Compliance Certificates
|
|
63
|
|
|
|
|
|
7.2.6
|
|
Data Requested
|
|
63
|
|
|
|
|
|
7.2.7
|
|
Tax Returns
|
|
64
|
|
|
|
|
|
7.2.8
|
|
[Reserved.]
|
|
64
|
|
|
|
|
|
7.2.9
|
|
[Reserved.]
|
|
64
|
|
|
|
|
|
7.2.10
|
|
Entity Notices
|
|
64
|
|
|
|
|
|
7.2.11
|
|
Property Acquisition or Sale
|
|
64
|
|
|
|
|
|
7.2.12
|
|
Property Finance
|
|
64
|
|
|
|
|
|
7.2.13
|
|
Notice of Litigation
|
|
64
|
|
|
|
7.3
|
|
Existence
|
|
65
|
|
|
|
7.4
|
|
Payment of Taxes
|
|
65
|
|
|
|
7.5
|
|
Insurance
|
|
66
|
|
|
|
|
|
7.5.1
|
|
Insurance
|
|
66
|
|
|
|
|
|
7.5.2
|
|
Notice of Damage
|
|
66
|
|
|
|
7.6
|
|
Inspection
|
|
66
|
|
|
|
7.7
|
|
Loan Documents
|
|
66
|
|
|
|
7.8
|
|
Further Assurances
|
|
66
|
|
|
|
7.9
|
|
Books and Records
|
|
66
|
|
|
|
7.10
|
|
Business and Operations
|
|
67
|
|
|
|
7.11
|
|
Estoppel
|
|
67
|
|
|
|
7.12
|
|
ERISA
|
|
67
|
|
|
|
7.13
|
|
[Reserved]
|
|
68
|
|
|
|
7.14
|
|
Costs and Expenses
|
|
68
|
|
|
|
7.15
|
|
Indemnification
|
|
68
|
|
|
|
7.16
|
|
Interest Coverage Ratio
|
|
68
|
|
|
|
7.17
|
|
Leverage Ratio
|
|
69
|
|
|
|
7.18
|
|
Fixed Charge Ratio
|
|
69
|
|
|
|
7.19
|
|
Net Worth
|
|
69
|
|
|
|
7.20
|
|
Secured Debt Ratio
|
|
69
|
|
|
|
7.21
|
|
Borrowing Base Property Covenants
|
|
69
|
|
|
|
|
|
7.21.1
|
|
Occupancy Ratio
|
|
69
|
|
|
|
|
|
7.21.2
|
|
Retail Center
|
|
69
|
|
|
|
|
|
7.21.3
|
|
Business Strategy
|
|
70
|
|
|
|
|
|
7.21.4
|
|
Minimum Borrowing Base Properties
|
|
70
|
|
|
|
7.22
|
|
Variable Rate Debt
|
|
71
|
|
|
|
7.23
|
|
Replacement Documentation
|
|
71
|
|
|
|
7.24
|
|
Maintenance of REIT Status
|
|
71
|
|
|
|
7.25
|
|
The Lenders’ Consultants
|
|
71
|
|
|
|
|
|
7.25.1
|
|
Right to Employ
|
|
71
|
iv
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7.25.2
|
|
Functions
|
|
70
|
|
|
|
|
|
7.25.3
|
|
Payment
|
|
70
|
|
|
|
|
|
7.25.4
|
|
Access
|
|
71
|
|
|
|
|
|
7.25.5
|
|
No Liability
|
|
71
|
|
|
|
7.26
|
|
Payment of Obligations
|
|
71
|
|
|
|
7.27
|
|
Compliance with Laws
|
|
71
|
|
|
|
|
|
8.
|
|
NEGATIVE COVENANTS
|
|
71
|
|
|
|
|
|
|
|
|
8.1
|
|
No Changes to the Borrower and other Loan Parties
|
|
71
|
|
|
|
8.2
|
|
Restrictions on Liens
|
|
71
|
|
|
|
|
|
8.2.1
|
|
Permitted Debt
|
|
72
|
|
|
|
|
|
8.2.2
|
|
Tax Liens
|
|
72
|
|
|
|
|
|
8.2.3
|
|
Judgment Liens
|
|
72
|
|
|
|
|
|
8.2.4
|
|
Personal Property Liens
|
|
72
|
|
|
|
|
|
8.2.5
|
|
Intentionally Omitted
|
|
72
|
|
|
|
|
|
8.2.6
|
|
Easements, etc
|
|
72
|
|
|
|
|
|
8.2.7
|
|
Title Matters
|
|
72
|
|
|
|
8.3
|
|
Consolidations, Mergers, Sales of Assets, Issuance and Sale of Equity
|
|
73
|
|
|
|
|
|
8.3.1
|
|
Transfers
|
|
73
|
|
|
|
|
|
8.3.2
|
|
Non-Loan Parties
|
|
73
|
|
|
|
|
|
8.3.3
|
|
Loan Parties
|
|
73
|
|
|
|
|
|
8.3.4
|
|
Borrowing Base Properties
|
|
73
|
|
|
|
|
|
8.3.5
|
|
Leases
|
|
73
|
|
|
|
|
|
8.3.6
|
|
Property Transfers
|
|
73
|
|
|
|
|
|
8.3.7
|
|
Ordinary Course
|
|
74
|
|
|
|
|
|
8.3.8
|
|
With Consent
|
|
74
|
|
|
|
|
|
8.3.9
|
|
Permitted Investments
|
|
74
|
|
|
|
|
|
8.3.10
|
|
Equity Issuances
|
|
74
|
|
|
|
|
|
8.3.11
|
|
Merger of Loan Parties
|
|
74
|
|
|
|
|
|
8.3.12
|
|
Cedar-Riverview
|
|
74
|
|
|
|
|
|
8.3.13
|
|
Cedar-Revere
|
|
74
|
|
|
|
8.4
|
|
Restrictions on Debt
|
|
74
|
|
|
|
|
|
8.4.1
|
|
Debt under this Agreement
|
|
74
|
|
|
|
|
|
8.4.2
|
|
Unsecured Debt
|
|
74
|
|
|
|
|
|
8.4.3
|
|
Individual Property Debt
|
|
75
|
|
|
|
|
|
8.4.4
|
|
Nonrecourse Debt
|
|
75
|
|
|
|
|
|
8.4.5
|
|
Ordinary Course
|
|
75
|
|
|
|
|
|
8.4.6
|
|
Capital Leases
|
|
75
|
|
|
|
|
|
8.4.7
|
|
Cross-Collateralized Debt
|
|
75
|
|
|
|
|
|
8.4.8
|
|
Other Unsecured Debt
|
|
75
|
|
|
|
|
|
8.4.9
|
|
Other Debt
|
|
75
|
|
|
|
8.5
|
|
Other Business
|
|
75
|
|
|
|
8.6
|
|
Change of Control
|
|
75
|
|
|
|
8.7
|
|
Forgiveness of Debt
|
|
75
|
|
|
|
8.8
|
|
Affiliate Transactions
|
|
75
|
|
|
|
8.9
|
|
ERISA
|
|
|
|
76
|
|
|
|
8.10
|
|
Bankruptcy Filings
|
|
76
|
v
|
|
|
|
|
|
|
|
|
|
|
|
|
8.11
|
|
Investment Company
|
|
76
|
|
|
|
8.12
|
|
[Reserved]
|
|
76
|
|
|
|
8.13
|
|
Use of Proceeds
|
|
76
|
|
|
|
8.14
|
|
Distributions
|
|
76
|
|
|
|
8.15
|
|
Restrictions on Investments
|
|
76
|
|
|
|
8.16
|
|
Negative Pledges, Etc.
|
|
76
|
|
|
|
8.17
|
|
Swap Contracts
|
|
77
|
|
|
|
|
|
9.
|
|
SPECIAL PROVISIONS
|
|
77
|
|
|
|
|
|
|
|
|
9.1
|
|
Legal Requirements
|
|
77
|
|
|
|
9.2
|
|
Limited Recourse Provisions
|
|
77
|
|
|
|
|
|
9.2.1
|
|
Borrower Fully Liable
|
|
77
|
|
|
|
|
|
9.2.2
|
|
Certain Non-Recourse
|
|
77
|
|
|
|
|
|
9.2.3
|
|
Additional Matters
|
|
78
|
|
|
|
9.3
|
|
Payment of Obligations
|
|
78
|
|
|
|
|
|
10.
|
|
EVENTS OF DEFAULT
|
|
78
|
|
|
|
|
|
|
|
|
10.1
|
|
Default and Events of Default
|
|
78
|
|
|
|
|
|
10.1.1
|
|
Failure to Pay the Loan
|
|
78
|
|
|
|
|
|
10.1.2
|
|
Failure to Make Other Payments
|
|
79
|
|
|
|
|
|
10.1.3
|
|
Loan Documents
|
|
79
|
|
|
|
|
|
10.1.4
|
|
Default under Other Agreements
|
|
79
|
|
|
|
|
|
10.1.5
|
|
Representations and Warranties
|
|
80
|
|
|
|
|
|
10.1.6
|
|
Affirmative Covenants
|
|
80
|
|
|
|
|
|
10.1.7
|
|
Negative Covenants
|
|
80
|
|
|
|
|
|
10.1.8
|
|
Financial Status and Insolvency
|
|
80
|
|
|
|
|
|
10.1.9
|
|
Loan Documents
|
|
80
|
|
|
|
|
|
10.1.10
|
|
Judgments
|
|
80
|
|
|
|
|
|
10.1.11
|
|
ERISA
|
|
81
|
|
|
|
|
|
10.1.12
|
|
Change of Control
|
|
81
|
|
|
|
|
|
10.1.13
|
|
Indictment; Forfeiture
|
|
81
|
|
|
|
|
|
10.1.14
|
|
Generally
|
|
81
|
|
|
|
10.2
|
|
Grace Periods and Notice
|
|
81
|
|
|
|
|
|
10.2.1
|
|
No Notice or Grace Period
|
|
81
|
|
|
|
|
|
10.2.2
|
|
Nonpayment of Interest
|
|
82
|
|
|
|
|
|
10.2.3
|
|
Other Monetary Defaults
|
|
82
|
|
|
|
|
|
10.2.4
|
|
Nonmonetary Defaults Capable of Cure
|
|
82
|
|
|
|
|
|
10.2.5
|
|
Borrowing Base Property Defaults
|
|
82
|
|
|
|
|
|
11.
|
|
REMEDIES
|
|
82
|
|
|
|
|
|
|
|
|
11.1
|
|
Remedies
|
|
82
|
|
|
|
|
|
11.1.1
|
|
Accelerate Debt
|
|
82
|
|
|
|
|
|
11.1.2
|
|
Intentionally Omitted
|
|
82
|
|
|
|
|
|
11.1.3
|
|
Pursue Remedies
|
|
82
|
|
|
|
11.2
|
|
Distribution of Liquidation Proceeds
|
|
83
|
|
|
|
11.3
|
|
Power of Attorney
|
|
83
|
vi
|
|
|
|
|
|
|
|
|
|
|
12.
|
|
SECURITY INTEREST AND SET-OFF
|
|
84
|
|
|
|
|
|
|
|
|
12.1
|
|
Security Interest
|
|
84
|
|
|
|
12.2
|
|
Set-Off/Sharing of Payments
|
|
84
|
|
|
|
12.3
|
|
Right to Freeze
|
|
84
|
|
|
|
12.4
|
|
Additional Rights
|
|
85
|
|
|
|
|
|
13.
|
|
THE ADMINISTRATIVE AGENT AND THE LENDERS
|
|
85
|
|
|
|
|
|
|
|
|
13.1
|
|
Rights, Duties and Immunities of the Administrative Agent
|
|
85
|
|
|
|
|
|
13.1.1
|
|
Appointment of Administrative Agent
|
|
85
|
|
|
|
|
|
13.1.2
|
|
No Other Duties, Etc.
|
|
85
|
|
|
|
|
|
13.1.3
|
|
Delegation of Duties
|
|
85
|
|
|
|
|
|
13.1.4
|
|
Exculpatory Provisions
|
|
85
|
|
|
|
|
|
13.1.5
|
|
Reliance by Administrative Agent
|
|
86
|
|
|
|
|
|
13.1.6
|
|
Notice of Default
|
|
87
|
|
|
|
|
|
13.1.7
|
|
Lenders’ Credit Decisions
|
|
87
|
|
|
|
|
|
13.1.8
|
|
Administrative Agent’s Reimbursement and Indemnification
|
|
87
|
|
|
|
|
|
13.1.9
|
|
Administrative Agent in its Individual Capacity
|
|
87
|
|
|
|
|
|
13.1.10
|
|
Successor Administrative Agent
|
|
88
|
|
|
|
|
|
13.1.11
|
|
Administrative Agent May File Proofs of Claim
|
|
89
|
|
|
|
|
|
13.1.12
|
|
Guaranty Matters
|
|
89
|
|
|
|
13.2
|
|
Respecting Loans and Payments
|
|
89
|
|
|
|
|
|
13.2.1
|
|
Adjustments
|
|
89
|
|
|
|
|
|
13.2.2
|
|
Setoff
|
|
90
|
|
|
|
|
|
13.2.3
|
|
Distribution by the Administrative Agent
|
|
90
|
|
|
|
|
|
13.2.4
|
|
Removal or Replacement of a Lender
|
|
90
|
|
|
|
|
|
13.2.5
|
|
Holders
|
|
91
|
|
|
|
13.3
|
|
Assignments by Lenders
|
|
91
|
|
|
|
|
|
13.3.1
|
|
Successors and Assigns Generally
|
|
91
|
|
|
|
|
|
13.3.2
|
|
Assignments by Lenders
|
|
91
|
|
|
|
|
|
13.3.3
|
|
Register
|
|
93
|
|
|
|
|
|
13.3.4
|
|
Participations
|
|
93
|
|
|
|
|
|
13.3.5
|
|
Limitations upon Participant Rights
|
|
94
|
|
|
|
|
|
13.3.6
|
|
Certain Pledges
|
|
95
|
|
|
|
13.4
|
|
Administrative Matters.
|
|
95
|
|
|
|
|
|
13.4.1
|
|
Amendment, Waiver, Consent, Etc.
|
|
95
|
|
|
|
|
|
13.4.2
|
|
Deemed Consent or Approval
|
|
96
|
|
|
|
|
|
13.4.3
|
|
Swap Contract
|
|
|
|
|
|
|
|
14.
|
|
RESERVED
|
|
97
|
|
|
|
|
|
15.
|
|
GENERAL PROVISIONS
|
|
97
|
|
|
|
|
|
|
|
|
15.1
|
|
Notices
|
|
97
|
|
|
|
15.2
|
|
Interest Rate Limitation
|
|
99
|
|
|
|
15.3
|
|
[Reserved]
|
|
100
|
|
|
|
15.4
|
|
[Reserved]
|
|
100
|
|
|
|
15.5
|
|
Parties Bound
|
|
100
|
|
|
|
15.6
|
|
Governing Law; Consent to Jurisdiction; Mutual Waiver of Jury Trial
|
|
100
|
vii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15.6.1
|
|
GOVERNING LAW
|
|
100
|
|
|
|
|
|
15.6.2
|
|
SUBMISSION TO JURISDICTION
|
|
100
|
|
|
|
|
|
15.6.3
|
|
WAIVER OF VENUE
|
|
101
|
|
|
|
|
|
15.6.4
|
|
SERVICE OF PROCESS
|
|
101
|
|
|
|
|
|
15.6.5
|
|
WAIVER OF JURY TRIAL
|
|
101
|
|
|
|
15.7
|
|
Survival
|
|
|
|
101
|
|
|
|
15.8
|
|
Cumulative Rights
|
|
102
|
|
|
|
15.9
|
|
Expenses; Indemnity; Damage Waiver
|
|
102
|
|
|
|
|
|
15.9.1
|
|
Costs and Expenses
|
|
102
|
|
|
|
|
|
15.9.2
|
|
Indemnification by the Borrower
|
|
102
|
|
|
|
|
|
15.9.3
|
|
Reimbursement by Lenders
|
|
103
|
|
|
|
|
|
15.9.4
|
|
Waiver of Consequential Damages, Etc
|
|
103
|
|
|
|
|
|
15.9.5
|
|
Payments
|
|
103
|
|
|
|
|
|
15.9.6
|
|
Survival
|
|
103
|
|
|
|
15.10
|
|
Regarding Consents
|
|
104
|
|
|
|
15.11
|
|
Obligations Absolute
|
|
104
|
|
|
|
15.12
|
|
Table of Contents, Title and Headings
|
|
104
|
|
|
|
15.13
|
|
Counterparts
|
|
104
|
|
|
|
15.14
|
|
Satisfaction of Commitment Letter
|
|
104
|
|
|
|
15.15
|
|
Time Of the Essence
|
|
104
|
|
|
|
15.16
|
|
No Oral Change
|
|
104
|
|
|
|
15.17
|
|
Monthly Statements
|
|
105
|
|
|
|
15.18
|
|
No Advisory or Fiduciary Responsibility
|
|
105
|
|
|
|
15.19
|
|
USA PATRIOT Act
|
|
105
|
|
|
|
15.20
|
|
Treatment of Certain Information; Confidentiality
|
|
106
|
viii
SCHEDULES
|
|
|
|
|
Schedule 1.1(a)
|
|
Lenders’ Commitment
|
|
|
|
|
Schedule 4
|
|
Authorized Officers
|
|
|
|
|
Schedule 6.4
|
|
Ownership Interests and Taxpayer Identification Numbers
|
|
|
|
|
Schedule 6.14.2
|
|
Borrowing Base Properties
|
|
|
|
|
Schedule 6.14.3
|
|
Environmental Reports
|
|
|
|
|
Schedule 6.14.5
|
|
Ground Leases
|
|
|
|
|
Schedule 6.23.1
|
|
Major Leases
|
|
|
|
|
Schedule 8.3.6
|
|
Designated Properties
|
|
|
|
|
Schedule 15.1
|
|
Notices
|
ix
EXHIBITS
|
|
|
|
|
|
|
|
|
|
|
Exhibit A
|
|
—
|
|
Form of Loan Notice
|
|
|
|
|
|
Exhibit B
|
|
—
|
|
Form of Note
|
|
|
|
|
|
Exhibit C
|
|
—
|
|
Form of Compliance Certificate
|
|
|
|
|
|
Exhibit D
|
|
—
|
|
Form of Assignment and Assumption
|
|
|
|
|
|
Exhibit E
|
|
—
|
|
Form of Closing Compliance Certificate
|
|
|
|
|
|
Exhibit F-1
|
|
—
|
|
Form of CRT Guaranty Agreement
|
|
|
|
|
|
Exhibit F-2
|
|
—
|
|
Form of Subsidiary Guaranty Agreement
|
|
|
|
|
|
Exhibit H
|
|
—
|
|
Form of Cash Flow Projections
|
x
LOAN AGREEMENT
This agreement (this “
Loan Agreement
” or “
Agreement
”) is made and entered into as of February 11, 2014,
by and between CEDAR REALTY TRUST PARTNERSHIP, L.P., a Delaware limited partnership (the “
Borrower
”), KEYBANK NATIONAL ASSOCIATION (“
KeyBank
”) and the several banks and other financial institutions as are, or may
from time to time become parties to this Agreement (each a “
Lender
” and collectively, the “
Lenders
”), KEYBANK NATIONAL ASSOCIATION, as administrative agent for the Lenders (the “
Administrative
Agent
”), and KEYBANC CAPITAL MARKETS CAPITAL ONE, NATIONAL ASSOCIATION, MANUFACTURERS AND TRADERS TRUST COMPANY and REGIONS BANK as Co-Lead Arrangers and Co-Book Managers, and TD BANK, N.A., as Documentation Agent.
WITNESSETH:
WHEREAS, the
Borrower has requested that the Lenders provide to the Borrower the Tranche A Term Facility and the Tranche B Term Facility (as such terms are hereinafter defined); and
WHEREAS, the Lenders have so agreed to provide to the Borrower for both the Tranche A Term Facility and the Tranche B Term Facility on and
subject to the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION
of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.1
Defined Terms.
As used in this Loan Agreement, the following terms shall have the meanings specified below unless the context otherwise requires:
“
Act
” shall have the meaning set forth in
Section 15.19
.
“
Additional Borrowing Base Request
” shall have the meaning set forth in
Section 3.4
.
“
Adjusted Capitalized Value
” shall mean with respect to any Borrowing Base Property, the most recent fiscal quarter Adjusted
Net Operating Income for such Borrowing Base Property, annualized, capitalized at the Capitalization Rate.
“
Adjusted
FFO
” shall mean, for CRT and its Consolidated Subsidiaries, net income (loss) (computed in accordance with GAAP), excluding gains (or losses) from (i) debt restructurings, (ii) sales of real property, and (iii) extraordinary
and/or nonrecurring items, plus real estate related depreciation and amortization and after adjustments for unconsolidated partnerships and joint ventures, as set forth in more detail under the definitions and interpretations thereof relative to
funds from operations promulgated by the National Association of Real Estate Investment Trusts or its successor.
1
“
Adjusted Net Operating Income
” shall mean, for any period of determination, for
any Individual Property, the Pro Rata Share of (i) Net Operating Income,
less
(ii) management fees (calculated as the greater of either three percent (3%) of total revenue or actual management expenses incurred), to the extent
not already deducted from Net Operating Income, less (iii) allowances for capital expenditures in the amount of $0.20 per annum per rentable square foot of completed improvements.
“
Administrative Agent
” shall mean, KEYBANK NATIONAL ASSOCIATION, acting as agent for the Lenders, together with its
successors and assigns.
“
Administrative Agent’s Office
” shall mean the Administrative Agent’s address and, as
appropriate, account as set forth in
Section 15.1
, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders
“
Administrative Questionnaire
” shall mean an Administrative Questionnaire in a form supplied by the Administrative Agent.
“
Advance Date
” shall have the meaning set forth in
Section 2.1.2(a)
.
“
Affiliate
” shall mean, with respect to any Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“
Agent Parties
” shall
have the meaning set forth in
Section 15.1(c)
.
“
Agreement
” shall have the meaning set forth in the Preamble.
“
Applicable Margin
” shall mean, for any day, with respect to any LIBO Rate Advances under the Tranche A Term Facility or
Tranche B Term Facility, or Base Rate Advances under the Tranche A Term Facility or Tranche B Term Facility, as the case may be, the applicable rate per annum set forth below under the caption “Tranche A LIBO Rate Advances”, “Tranche
A Base Rate Advances”, “Tranche B LIBO Rate Advances” or “Tranche B Base Rate Advances”:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Level
|
|
Leverage Ratio
|
|
Tranche A
LIBO Rate Advances
Applicable Margin
|
|
|
Tranche A
Base Rate Advances
Applicable Margin
|
|
|
Tranche B
LIBO Rate Advances
Applicable Margin
|
|
|
Tranche B
Base Rate Advances
Applicable Margin
|
|
|
1
|
|
³
55% but < 60%
|
|
|
2.05
|
%
|
|
|
1.05
|
%
|
|
|
2.30
|
%
|
|
|
1.30
|
%
|
|
2
|
|
³
50% but < 55%
|
|
|
1.75
|
%
|
|
|
.75
|
%
|
|
|
2.00
|
%
|
|
|
1.00
|
%
|
|
3
|
|
³
45% but < 50%
|
|
|
1.55
|
%
|
|
|
.55
|
%
|
|
|
1.80
|
%
|
|
|
.80
|
%
|
|
4
|
|
< 45%
|
|
|
1.45
|
%
|
|
|
.45
|
%
|
|
|
1.70
|
%
|
|
|
.70
|
%
|
Each change in the applicable LIBO Rate Advances Applicable Margin or the Base Rate Advances Applicable
Margin, as the case may be, shall apply during the period commencing on the date of the most recent Compliance Certificate delivered to the Administrative Agent and ending on the date of receipt of the next Compliance Certificate. If a Compliance
Certificate is
2
not delivered to the Administrative Agent in accordance with the terms hereof, the Applicable Margin shall be deemed to be based on Level 1 until the required Compliance Certificate is delivered
to the Administrative Agent. The provisions of this definition shall be subject to
Section 2.3.16
.
“
Approved
Fund
” shall mean any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“
Arranger
” shall mean, collectively, KeyBanc Capital Markets, Capital One, National Association, Manufacturers and Traders
Trust Company and Regions Bank.
“
Assignee Group
” shall mean two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.
“
Assignment and Assumption
” shall mean an
assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by
Section 13.3
, and accepted by the Administrative Agent), in substantially the form of
Exhibit D
or any
other form approved by the Administrative Agent.
“
Authorized Officer
” shall mean, with respect to any Loan Party, the
Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the Vice President of Operations and their respective successors, it being understood that one individual may hold the office of Chief Operating Officer and Vice
President of Operations.
“
Base Rate
” shall mean for any day a fluctuating rate per annum equal to the highest of
(a) the Federal Funds Rate
plus
one half of 1% (0.50%), or (b) the Prime Rate in effect for such day. “
Prime Rate
” shall mean the rate of interest in effect for such day as publicly announced from time to time by
KeyBank as its “prime rate.” The “prime rate” is a rate set by KeyBank based upon various factors including KeyBank’s costs and desired return, general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by KeyBank shall take effect at the opening of business on the day specified in the public announcement of such change.
“
Base Rate Advance
” shall mean any principal amount outstanding under this Agreement which pursuant to this Agreement bears
interest at the Base Rate Accrual Rate.
“
Base Rate Accrual Rate
” shall mean the greater of (a) the Base Rate plus
the Applicable Margin or (b) the LIBO Rate (as specified in clause (b) of the definition thereof)
plus
the Applicable Margin for the corresponding LIBO Rate Advance had such advance been a LIBO Rate Advance.
“
Book Value
” shall mean the value of such property or asset, as determined in accordance with GAAP.
“
Borrower
” shall have the meaning set forth in the Preamble.
3
“
Borrower Materials
” shall have the meaning set forth in
Section 7.2.13
.
“
Borrower Subsidiaries
” shall mean, individually and collectively, all of the Subsidiaries
of the Borrower and/or CRT.
“
Borrower Termination Date
” shall have the meaning set forth in
Section 2.2.3
.
“
Borrowing Base Property
” and “
Borrowing Base Properties
” shall mean, the Individual Properties
initially listed in
Schedule 6.14.2(i)
hereto, plus any Individual Property which subsequently becomes a Borrowing Base Property in accordance with
Section 3.4
hereof, but excluding (i) any Borrowing Base Property which
is determined by the Administrative Agent to no longer be a Borrowing Base Property in accordance with
Section 3.3
, hereof, or (ii) any Borrowing Base Property which is released in accordance with
Section 3.2
hereof.
“
Borrowing Base Property Owner
” and “
Borrowing Base Property Owners
” shall mean, from time to time, the
Wholly-Owned Subsidiary or Subsidiaries of the Borrower or CRT (or an Unconsolidated CRT Entity to the extent approved by the Administrative Agent) which is or are the owner or owners of the fee simple interest in, or the approved ground lessee of,
a Borrowing Base Property or the Borrowing Base Properties.
“
Borrowing Base Property Requirements
” shall mean the
requirements, with respect to any Individual Property, set forth below:
(a) The Individual Property satisfies all Eligibility Criteria or
is otherwise approved by the Required Lenders.
(b) Each applicable Loan Party has executed and delivered to the Administrative Agent a
Guaranty.
(c) The Individual Property is owned in fee simple or ground leased pursuant to a Ground Lease by a Wholly-Owned Subsidiary of
the Borrower, except as otherwise approved by the Administrative Agent.
(d) The Administrative Agent shall have received and completed a
satisfactory review of such due diligence as the Administrative Agent may reasonably require (with the Borrower delivering such diligence to the Administrative Agent for delivery to the Lenders) with respect to any Individual Property (with the
Administrative Agent agreeing to use reasonable efforts to utilize any due diligence previously submitted by the Borrower and received by the Administrative Agent pursuant to the Revolving/Term Facility), including, without limitation:
(i) To the extent in Borrower’s files, a copy of the owner’s title insurance policy or other evidence of the status
of title to the Individual Property reasonably satisfactory to the Administrative Agent and the Administrative Agent’s counsel; and
(ii) To the extent requested by the Administrative Agent, copies of all Major Leases; and
4
(iii) To the extent in the Borrower’s files, a current environmental Phase I
Site Assessment performed by a firm reasonably acceptable to the Administrative Agent within six (6) months of submission to the Administrative Agent, which indicates the property is free from recognized hazardous materials or substances
apparent from the inspection, or affected by such environmental matters as may be reasonably acceptable to the Administrative Agent.
“
Borrowing Base Value
” shall mean, as of the most recent Compliance Certificate or Borrowing Base Property report, as
applicable, delivered to the Administrative Agent, the sum of for all Borrowing Base Properties, (a) the lesser of (i) sixty percent (60%) of the Adjusted Capitalized Value of all such Borrowing Base Properties, or (ii) the
Implied Loan Amount for all such Borrowing Base Properties, less (b) the Excess Recourse Debt, less (c) all Unsecured Debt of CRT and its Subsidiaries (excluding the Total Outstandings); provided, however, for purposes of calculating
Borrowing Base Value, (x) the Borrowing Base Value from any single Borrowing Base Property shall not exceed fifteen percent (15%) of the total Borrowing Base Value and any Borrowing Base Value from such Borrowing Base Asset in excess of
fifteen percent (15%) shall be excluded from the calculation of total Borrowing Base Value, and (y) aggregate rents from any single tenant or affiliate group of tenants may not exceed twenty five percent (25%) of the total rents of
CRT and its Subsidiaries, and any rents from such tenants or affiliated group in excess of twenty five percent (25%) shall be excluded from the calculation of total Borrowing Base Value.
“
Breakage Fee
” shall have the meaning set forth in
Section 2.3.15
.
“
Business Day
” shall mean any day other than a Saturday, Sunday or other day on which commercial banks are authorized to
close under the Laws of, or are in fact closed in, New York, New York or the state where the Administrative Agent’s Office is located and, if such day relates to any LIBO Rate Advance, shall mean any such day on which dealings in Dollar
deposits are conducted by and between banks in the London interbank eurodollar market. Further, payments shall be due on the first Business Day of each calendar month
“
Calculation Date
” shall mean the last day of each calendar quarter commencing with March 31, 2014.
“
Calculation Period
” shall mean for each Calculation Date, the just completed calendar quarter (inclusive of the applicable
Calculation Date).
“
Capital Stock
” shall mean (i) with respect to any Person that is a corporation, any and all
shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including without limitation, each class or series of common stock and preferred stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all investment units, partnership, membership or other equity interests of such Person.
“
Capitalization Rate
” shall be equal to seven and one-half percent (7.5%).
“
Carveout Designated Properties
” shall mean those certain properties known as Gahanna Discount Drug Mart Plaza, McCormick
Place and Roosevelt II.
5
“
Cash Flow Projections
” shall mean a detailed schedule of all cash Distributions
projected to be made to the Borrower from the Borrower Subsidiaries, as detailed on the model delivered to the Administrative Agent prior to the Closing Date (attached hereto as Exhibit H), and subject to change as shall be detailed in the
respective Officer’s Certificate to be provided to the Administrative Agent as set forth herein, as may be requested by Administrative Agent from time to time.
“
Change in Law
” shall mean the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking
effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of law) by any Governmental Authority. Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines and directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or
similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“
Change of Control
” shall mean the occurrence of any of the following:
(a) The acquisition by any Person, or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended) of Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended), directly or indirectly, of 50% or more of the
outstanding shares of voting stock of CRT, other than short term acquisitions necessary in connection with the ultimate sale or other offerings of equity interests otherwise permitted hereunder;
(b) During any period of twelve (12) consecutive calendar months, individuals:
(1) Who were directors of CRT on the first day of such period; or
(2) Whose election or nomination for election to the board of directors of CRT was recommended or approved by at least a majority of the
directors then still in office who were directors of CRT on the first day of such period, or whose election or nomination for election was so approved,
shall cease to constitute a majority of the board of directors of CRT; or
(c) CRT shall cease to be the sole general partner of Borrower; or
(d) CRT shall cease to own a minimum of 50% of the beneficial ownership interest in the Borrower, or
6
(e) With respect to any Borrowing Base Property Owner, the transfer of any ownership interest
therein such that such Borrowing Base Property Owner is not a Wholly-Owned Subsidiary of the Borrower or CRT.
“
Closing Compliance
Certificate
” shall have the meaning set forth in
Section 5.1.2(b)
.
“
Closing Date
” shall have the
meaning set forth in
Section 5.1
.
“
Code
” shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect at the date of this Agreement and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
“
Combined EBITDA
” shall mean the sum of the Pro Rata Share of EBITDA for each
Consolidated CRT Entity and each Unconsolidated CRT Entity.
“
Commitment
” shall mean, with respect to each Lender, the
aggregate amount of such Lender’s Tranche A Term Commitment and Tranche B Term Commitment.
“
Commitment Letter
”
shall mean that certain Confidential Summary of Terms and Conditions, dated as of December 2013, by and among the Borrower and KeyBank.
“
Commitment Percentage
” shall mean with respect to any Lender at any time, the percentage (carried out to the ninth decimal
place) of the Total Commitments represented by such Lender’s Commitment at such time. If the commitment of each Lender to make Loan Advances has been terminated pursuant to
Section 11.2
or if the Total Commitments have expired, then
the Commitment Percentage of each Lender shall be determined based on the Commitment Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Commitment Percentage of each Lender is set forth
opposite the name of such Lender on
Schedule 1.1(a)
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
“
Compliance Certificate
” shall mean a compliance certificate in the form of
Exhibit C
.
“
Consolidated
” or “
Consolidating
” shall mean consolidated or consolidating as defined in accordance with
GAAP.
“
Consolidated CRT Entity
” or “
Consolidated CRT Entities
” shall mean, singly and collectively, the
Borrower, CRT, and any Subsidiary of the Borrower or CRT that is Consolidated.
“
Control
” shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “
Controlling
” and
“
Controlled
” have meanings correlative thereto.
“
Credit Extension
” shall mean a Loan Advance.
7
“
CRT
” shall mean Cedar Realty Trust, Inc., a Maryland corporation.
“
Debt
” shall mean, with respect to any Person, without duplication, (i) all indebtedness of such Person for borrowed
money, (ii) all indebtedness of such Person for the deferred purchase price of property or services (other than property and services purchased, and expense accruals and deferred compensation items arising, in the ordinary course of business),
(iii) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments (other than performance, surety and appeal bonds arising in the ordinary course of business), (iv) all indebtedness of such Person
created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (v) all obligations of such Person under leases which have been, or should be, in accordance with generally accepted accounting principles, recorded as capital leases, to the extent required to be so
recorded, (vi) all reimbursement, payment or similar obligations of such Person, contingent or otherwise, under acceptance, letter of credit or similar facilities (other than letters of credit in support of trade obligations or in connection
with workers’ compensation, unemployment insurance, old-age pensions and other social security benefits in the ordinary course of business), (vii) any Guarantee of any indebtedness or other obligation of any Person, either directly or
indirectly, of indebtedness described in clauses (i) through (vi), and (viii) all Debt referred to in clauses (i) through (vii) above secured by (or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien, security interest or other charge or encumbrance upon or in property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable
for the payment of such Debt. For the purposes of the calculation of the Financial Covenants, Debt of any entity in which a Person owns an ownership interest shall be calculated on its Pro Rata Share of such Debt, unless such Person has delivered a
guaranty or other indemnity in connection with such Debt creating a greater proportionate liability, in which event, such greater liability shall apply.
“
Debtor Relief Laws
” shall mean the Bankruptcy Code of the United States, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting
the rights of creditors generally.
“
Default
” shall have the meaning set forth in
Section 10.1
.
“
Default Rate
” shall mean an interest rate equal to (i) the Base Rate plus (ii) the Applicable Margin, if any,
applicable to Base Rate Advances plus (iii) four percent (4.0%) per annum; provided, however, that with respect to a LIBO Rate Advance, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin)
otherwise applicable to such Loan plus four percent (4.0%) per annum.
“
Defaulting Lender
” shall mean Lender that
(a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans or participations were required to be funded hereunder unless such Lender notifies the Administrative Agent and the
Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions
8
precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the
Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend
to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such
Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed,
within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its funding obligations hereunder (
provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has,
(i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity;
provided
that a Lender shall not be a Defaulting Lender
solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a governmental authority so long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such governmental authority) to reject, repudiate, disavow or disaffirm any
contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender
shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Borrower and each Lender.
“
Designated Property(ies)
” shall mean the Individual Properties listed on Schedule 8.3.6.
“
Development Assets
” shall mean Individual Properties as to which construction of the associated or contemplated improvements
has commenced (either new construction or substantial renovation) but has not yet been completed such that a certificate of occupancy (or the local equivalent) for a substantial portion of the intended improvements has not yet been issued or, for
any completed project, until one hundred eighty (180) days after completion.
“
Distribution
” shall mean, with
respect to any Person, that such Person has paid a dividend or returned any equity capital to its stockholders, members or partners or made any other distribution, payment or delivery of property (other than common stock or partnership or membership
interests of such Person) or cash to its stockholders, members or partners as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its capital stock or any membership or
partnership interests (or any options or warrants issued by such Person with respect to its capital stock or membership or partnership interests), or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for a consideration
any shares of any class of the capital stock or any membership or partnership
9
interests of such Person (or any options or warrants issued by such Person with respect to its capital stock or membership or partnership interests). Without limiting the foregoing,
“
Distributions
” with respect to any Person shall also include all payments made by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans.
“
Dollars
” shall mean lawful money of the United States.
“
EBITDA
” shall mean for any Person the sum of (i) net income (or loss),
plus
(ii) actual interest paid or
payable respecting all Debt to the extent included as an expense in the calculation of net income (or loss),
plus
(iii) total Tax Expenses to the extent included as an expense in the calculation of net income (or loss),
plus
(iv) total depreciation and amortization expense, to the extent included as an expense in the calculation of net income (or loss),
plus
(v) losses from extraordinary items, nonrecurring items, asset sales, write-ups or forgiveness
of debt, to the extent included as an expense in the calculation of net income,
minus
(vi) gains from extraordinary items, nonrecurring items, asset sales, write-ups or forgiveness of debt, to the extent included as income in the
calculation of net income,
minus
(vii) allowances for capital expenditures in the amount of $0.20 per annum per rentable square foot of improvements,
adjusted
(viii) for the elimination of straight line rents, all of the
foregoing as determined in accordance with GAAP, as appropriate,
minus
(ix) to the extent not deducted in calculating net income (or loss), Ground Lease Payments (except to the extent of any portion of such payment which is treated as a
payment under a capital lease in accordance with GAAP). Without limiting the generality of the foregoing, in determining EBITDA, net income shall include as income, Rent Loss Proceeds.
“
Eligibility Criteria
” shall mean the following criteria which must be satisfied in a manner acceptable to the Administrative
Agent for each Borrowing Base Property:
(a) The Borrowing Base Property is a completed retail center located within the contiguous United
States within one of CRT’s then current core markets, and being owned by a Borrowing Base Property Owner and managed by the Borrower;
(b) The Borrowing Base Property is of a scope and of an asset quality consistent with CRT’s other grocery-anchored properties or such
other retail center-related assets as is approved by the Administrative Agent;
(c) The Borrower provides reasonably acceptable historical
operating and leasing information;
(d) The Borrower provides a certification as to the absence of any material environmental issues;
(e) The Borrower provides certification as to the absence of any material structural issues; and
(f) No security interests, liens or other encumbrances shall exist on the Borrowing Base Property upon its inclusion as a Borrowing Base
Property, other than Permitted Liens.
10
“
Eligible Assignee
” shall mean any Person that meets the requirements to be an
assignee under
Section 13.3.2
(including the requirements or limitations set forth in
Sections 13.3.2(c)
,
(e)
and
(f)
), subject to such consents, if any, as may be required under
Section 13.3.2(c)
.
“
Environmental Report
” shall mean, each of the environmental reports listed on
Schedule 6.14.3
hereto, plus
any environmental report delivered to Administrative Agent in connection with the addition of a Borrowing Base Property in accordance with
Section 3.4
hereof.
“
Environmental Legal Requirements
” shall mean any and all applicable Federal, state and local statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the
environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems, as the same now exists or may be changed or amended or come into effect in the future, which pertains to any Hazardous
Material or the environment including ground or air or water or noise pollution or contamination, and underground or aboveground tanks.
“
ERISA
” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
“
ERISA Affiliate
” shall mean each person (as defined in Section 3(9) of ERISA) which together with either Borrower or a
Loan Party would be deemed to be a “single employer” (i) within the meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of either Borrower or a Loan Party being or having been a general
partner of such Person.
“
Event of Default
” shall have the meaning set forth in
Section 10.1
.
“
Event of Loss
” shall mean, with respect to any Borrowing Base Property, any of the following: (a) any loss or
destruction of, or damage to, such Borrowing Base Property; or (b) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such Borrowing Base Property, or confiscation of such Borrowing Base
Property or the requisition of such Borrowing Base Property by a Governmental Agency or any Person having the power of eminent domain, or any voluntary transfer of such Borrowing Base Property or any portion thereof in lieu of any such condemnation,
seizure or taking.
“
Excess Recourse Debt
” shall mean, to the extent that the amount of recourse Debt permitted under
Section 8.4.3
is in excess of ten percent (10%) of Total Asset Value, the amount of such aggregate recourse Debt which is in excess of sixty five percent (65%) of the Adjusted Capitalized Value of the underyling Individual
Properties which secure such recourse Debt.
“
Excluded Taxes
” shall mean, with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall gross or net income (however denominated), and franchise taxes or similar
taxes imposed on it (in lieu of net income
11
taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender,
in which its applicable Lending Office is located or with which it has a present of former connection (other than any such connection resulting from its having executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document), (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding tax that is
required by the Code to be withheld from amounts payable to a Lender that has failed to comply with
Sections 2.8.5(b)(i)
, (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 13.2.4
), any United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a
new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (ii) of
Section 2.8.5(b)
, except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to
Sections 2.8.5(b)
or
(c)
, (e) any tax attributable to a failure or inability to comply with
Section 2.8.5(c)
, and (f) any U.S. federal withholding taxes imposed under FATCA.
“
Existing Borrowing Base Properties
” shall mean the Individual Properties that are qualified as Borrowing Base Properties
under the Revolving/Term Facility as of the Closing Date.
“
FATCA
” shall mean Sections 1471 through 1474 of the Code, as
of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.
“
Federal Funds Rate
” shall mean, for any day, the rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York; provided that (a) if such day is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions in effect on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to KeyBank on such day on such transactions as determined by the Administrative Agent.
“
Fee Letter
” shall mean that certain fee letter, dated as of even date herewith, by and among the Borrower and KeyBank.
“
Financial Covenants
” shall mean those covenants of the Borrower set forth in
Sections 7.16, 7.17, 7.18, 7.19, 7.20
,
and
7.22
.
“
Fiscal Year
” shall mean each twelve month period commencing on January 1 and ending on
December 31.
12
“
Fixed Charges
” shall mean, without duplication, the aggregate of the Pro Rata
Share of all (a) Interest Expenses (excluding any interest expenses required to be capitalized under GAAP), (b) regularly scheduled principal amortization payments (other than any final “balloon” payments due at maturity) on all
Debt of the Consolidated CRT Entities and the Unconsolidated CRT Entities, (c) preferred dividend payments or required Distributions (other than Distributions by the Borrower to holders of operating partnership units and Distributions by CRT to
common equity holders) paid or payable by the Consolidated CRT Entities and the Unconsolidated CRT Entities, (d) any portion of a payment under a lease which is treated as a payment under a capital lease in accordance with GAAP), and
(e) Tax Expenses for the Consolidated CRT Entities and the Unconsolidated CRT Entities, all of the foregoing as determined in accordance with GAAP.
“
Fixed Charge Ratio
” shall mean, for each Calculation Period, the ratio of (a) Combined EBITDA to (b) Fixed
Charges.
“
Foreign Lender
” shall mean any Lender that is not a United States person within the meaning of
Section 7701(a)(30) of the Code.
“
Formation Documents
” shall mean, singly and collectively, the partnership
agreements, joint venture agreements, limited partnership agreements, limited liability company or operating agreements and certificates of limited partnership and certificates of formation, articles (or certificate) of incorporation and by-laws and
any similar agreement, document or instrument of any Person, as amended subject to the terms and provisions hereof.
“
Fund
” shall mean any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“
Funding
Evidence
” shall mean, in connection with the Borrower raising the funds necessary to make any Mandatory Principal Payment to be made pursuant to
Section 2.3.8
, evidence in connection with (i) the sale of any asset, that the
Borrower has entered into a sales agreement, letter of intent, or listed the asset for sale with a recognized broker or (ii) the financing or refinancing of an asset, that the Borrower has obtained a commitment for such financing or submitted a
loan application to a recognized financial institution, the proceeds of which together with such other funds as are available to the Borrower will be sufficient to make the required payment.
“
GAAP
” shall mean generally accepted accounting principles in the United States of America.
“
Governmental Authority
” shall mean the government of the United States or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining
to government (including any supra-national bodies such as the European Union or the European Central Bank).
13
“
Ground Leases
” shall mean, from time to time, any ground lease relative to an
Individual Property and with respect to “Ground Leases” covering Borrowing Base Properties, for which the Administrative Agent has given its prior written approval.
“
Ground Lease Payments
” shall mean the sum of the Pro Rata Share of (i) payments made by the Consolidated CRT Entities
under Ground Leases and (ii) payments made under Ground Leases by Unconsolidated CRT Entities. Ground Lease Payments shall not include the payments made by Cedar-South Philadelphia I, LLC under that certain ground lease dated as of
October 31, 2003 by and between SPSP Corporation, Passyunk Supermarket, Inc., and Twenty Fourth Street Passyunk Partners, L.P., as landlord, and Cedar-South Philadelphia I, LLC, as tenant.
“
Guarantee
” shall mean, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing
or having the economic effect of guaranteeing any Debt or other obligation payable or performable by another Person (the “
primary obligor
”) in any manner, whether directly or indirectly, and including any obligation of such Person,
direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in
respect of such Debt or other obligation of the payment or performance of such Debt or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow
of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Debt or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Debt or other obligation of any other Person, whether or not such Debt or other
obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Debt to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term
“
Guarantee
” as a verb has a corresponding meaning.
“
Guaranty
” shall have the meaning set forth in
Section 3.1
, as such agreements may be amended, restated, supplemented or otherwise updated or modified from time to time.
“
Guarantor
” or “
Guarantors
” shall mean CRT and those certain single-purpose Subsidiaries of the Borrower
that have entered into a Guaranty, including without limitation, each Borrowing Base Property Owner and each Wholly-Owned Subsidiary of the Borrower or CRT which owns a direct or indirect ownership interest in a Borrowing Base Property Owner.
“
Hazardous Materials
” shall mean and include asbestos, mold, flammable materials, explosives, radioactive substances,
polychlorinated biphenyls, radioactive substances, other carcinogens, oil and other petroleum products, pollutants or contaminants that could be a detriment to the environment, and any other hazardous or toxic materials, wastes, or substances which
are defined, determined or identified as such in any past, present or future federal, state or local laws, rules, codes or regulations, or any judicial or administrative interpretation of such laws, rules, codes or regulations.
14
“
Implied Debt Service
” shall mean the greater of (a) the annual amount of
principal and interest payable on a hypothetical loan in an amount equal to the Implied Loan Amount, based upon a thirty (30) year direct reduction monthly amortization schedule and a per annum interest rate equal to the actual blended interest
rate for the Loan, or (b) an annual debt service constant of seven and ninety eight-one hundredths percent (7.98%) on such hypothetical loan amount.
“
Implied Debt Service Coverage Ratio
” shall mean as of each Calculation Date, the ratio of (i) the aggregate of
(a) Adjusted Net Operating Income for all Borrowing Base Properties for the most recent fiscal quarter, annualized, to (ii) Implied Debt Service; such calculation and results to be as verified by the Administrative Agent.
“
Implied Loan Amount
” shall mean a principal amount which would generate as of any Calculation Date an Implied Debt Service
Coverage Ratio of 1.50 to 1.00, which Implied Loan Amount may be revised by the Administrative Agent after the Closing Date or as of the most recent Compliance Certificate or Borrowing Base Property report, as applicable, delivered to the
Administrative Agent, to reflect additions, removals and other adjustments to the Borrowing Base Properties since the Closing Date or the most recent Compliance Certificate or Borrowing Base Property report, as applicable, delivered to the
Administrative Agent.
“
Increase Effective Date
” shall have the meaning set forth in
Section 2.1.1(c)
.
“
Indemnified Taxes
” shall mean Taxes other than Excluded Taxes.
“
Indemnitee
” shall have the meaning set forth in
Section 15.9.2
.
“
Individual Property
” and “
Individual Properties
” shall mean, from time to time, all real estate property
owned or ground leased by any Consolidated CRT Entity or any Unconsolidated CRT Entity, together with all improvements, fixtures, equipment, and personalty relating to such property.
“
Information
” shall have the meaning set forth in
Section 15.20
.
“
Interest Coverage Ratio
” shall mean the ratio of (a) a CRT’s Combined EBITDA for the immediately preceding
calendar quarter to (b) all Pro Rata Interest Expense paid or payable respecting all Debt by the Consolidated CRT Entities and the Unconsolidated CRT Entities for such period (excluding in each instance any interest expenses required to be
capitalized under GAAP).
“
Interest Expense
” shall mean the sum of the Pro Rata Share of the aggregate actual interest
expense (whether expensed or capitalized) paid or payable respecting all Debt by the Consolidated CRT Entities and the Unconsolidated CRT Entities.
15
“
Interest Period
” shall mean, as to each LIBO Rate Advance, the period
commencing on the date such LIBO Rate Advance is disbursed or converted to or continued as a LIBO Rate Advance and ending on the numerically corresponding day in the first, second or third month thereafter, as selected by the Borrower in its Loan
Notice;
provided
that:
(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to
the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
“
Investment
” shall mean the acquisition of any real property or tangible personal property or of any stock or other security,
any loan, advance, bank deposit, money market fund, contribution to capital, extension of credit (except for accounts receivable arising in the ordinary course of business and payable in accordance with customary terms), or purchase or commitment or
option to purchase or otherwise acquire real estate or tangible personal property or stock or other securities of any party or any part of the business or assets comprising such business, or any part thereof.
“
Joinder Agreement
” shall have the meaning set forth in
Section 2.1.1(d)
.
“
KeyBank
” shall mean KEYBANK NATIONAL ASSOCIATION and its successors and assigns.
“
Knowledge
” or “
knowledge
” shall mean, with respect to any Loan Party, the actual knowledge of any
Authorized Officer of such Loan Party. Notwithstanding the foregoing, such named parties and their successors are not parties to this Agreement and shall have no liability for a breach of any representation, warranty, covenant or agreement deemed to
be made to their actual knowledge.
“
Land Assets
” shall mean Individual Properties constituting raw or undeveloped land
as to which construction of contemplated improvements has not commenced or which does not generate rental revenues under a Ground Lease.
“
Late Charge
” shall have the meaning set forth in
Section 2.3.14
.
“
Laws
” shall mean, collectively, all Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case having the force of law.
“
Lease
” shall mean any lease relative to all or any portion of a Borrowing Base Property.
16
“
Lenders
” shall have the meaning set forth in the Preamble.
“
Lenders’ Consultant
” shall have the meaning set forth in
Section 27.1
.
“
Lending Office
” shall mean, as to any Lender, the office or offices of such Lender described as such in such Lender’s
Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“
Leverage Ratio
” shall mean the quotient (expressed as a percentage) resulting from dividing (i) the aggregate of all
Debt of the Consolidated CRT Entities and the Unconsolidated CRT Entities by (ii) the Total Asset Value.
“
LIBO
Rate
” shall mean:
(a) For any Interest Period with respect to a LIBO Rate Advance, the rate per annum equal to (A) the
LIBOR Rate as published by Reuters (or other commercially available source providing quotations of LIBOR as designated by the Administrative Agent from time to time) (“
LIBOR
”), at approximately 11:00 a.m., London time, two
(2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or (B) if such published rate is not available
at such time for any reason, the rate determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBO Rate Advance being
made, continued or converted by KeyBank and with a term equivalent to such Interest Period would be offered to major banks, including KeyBank, in the London interbank Eurodollar market at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the commencement of such Interest Period.
(b) For any interest rate calculation with respect to a Base Rate
Advance, the rate per annum equal to (i) LIBOR, at approximately 11:00 a.m., London time on the date of determination (provided that if such day is not a London Business Day, the next preceding London Business Day) for Dollar deposits being
delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate determined by the Administrative Agent to be the rate at which deposits
in Dollars for delivery on the date of determination in same day funds in the approximate amount of the subject Base Rate Advance being made, continued or converted by KeyBank and with a term equal to one month would be offered to major banks,
including KeyBank, in the London interbank Eurodollar market at their request at the date and time of determination.
“
LIBO Rate
Advance
” shall mean any principal outstanding under this Agreement which pursuant to this Agreement bears interest at the LIBO Rate plus the Applicable Margin.
“
Lien
” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other
encumbrance, charge or transfer, 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 mechanic’s,
materialmen’s and other similar liens and encumbrances.
17
“
Licenses and Permits
” shall mean all licenses, permits, authorizations and
agreements issued by or agreed to by any governmental authority or by a private party, and including, but not limited to, building permits, occupancy permits and such special permits, variances and other relief as may be required pursuant to Laws
which may be applicable to any Borrowing Base Property.
“
Line Fee
” shall have the meaning set forth in
Section 2.4.2
.
“
Line Percentage
” shall mean (i) 0.20% per annum, to the extent the total amounts
advanced under the Tranche A Term Facility and the Tranche B Term Facility are greater than or equal to fifty percent (50%) of the Total Commitment, and (ii) 0.30% per annum, to the extent the total amounts advanced under the Tranche
A Term Facility and the Tranche B Term Facility are less than fifty percent (50%) of the Total Commitment.
“
Liquidation
Proceeds
” shall mean amounts received by the Administrative Agent and/or the Lenders in the exercise of the rights and remedies under the Loan Documents.
“
Loan
” shall mean, individually or collectively, as the context so requires, for either the Tranche A Term Facility or the
Tranche B Term Facility, any extension of credit by a Lender to the Borrower under
Article 2
in the form of a Base Rate Advance or a LIBO Rate Advance.
“
Loan Advance
” or “
Loan Advances
” shall mean any advance of any proceeds of the Tranche A Term Facility or
the Tranche B Term Facility, as the case may be.
“
Loan Agreement
” shall have the meaning set forth in the Preamble.
“
Loan Documents
” shall have the meaning set forth in
Section 3.1
.
“
Loan Notice
” shall have the meaning set forth in
Section 2.1.2(b)
.
“
Loan Party
” and “
Loan Parties
” shall mean, singly and collectively, the Borrower, the Guarantors and each
Borrowing Base Property Owner.
“
Major Event of Loss
” shall mean, with respect to any Borrowing Base Property, any of the
following: (a) any loss or destruction of, or damage to, such Borrowing Base Property such that either (x) the repairs and restoration thereof cannot be completed, in the judgment of the Lenders’ Consultant and if there is no
Lenders’ Consultant, an independent architect or engineer retained by the Borrower, within six (6) months after the occurrence of such loss, damage or destruction or (y) rendering more than fifty percent (50%) of the Borrowing
Base Property unusable for the purposes conducted thereon immediately prior to such loss, destruction or damage, as determined by the applicable Lenders’ Consultant and if there is no Lenders’ Consultant, an independent architect or
engineer retained by the Borrower; or (b) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such Borrowing Base Property, or confiscation of such Borrowing Base Property or the requisition
of such Borrowing Base Property by a Governmental Agency or any Person having the power of eminent domain, or any voluntary transfer of such Borrowing Base Property or any portion thereof in lieu of any such condemnation, seizure or taking,
rendering more than fifty percent (50%) of the leaseable area of such Borrowing Base Property unusable for the purposes conducted thereon immediately prior to action, as determined by the Lenders’ Consultant and if there is no
Lenders’ Consultant, an independent architect or engineer retained by the Borrower.
18
“
Major Lease
” shall mean (i) any Lease for space in any Borrowing Base
Property (x) in excess of 25,000 rentable square feet, or (y) in excess of 15,000 rentable square feet and in excess of ten percent (10%) of the rentable square footage of such Borrowing Base Property, or (ii) any Lease with a
tenant who is a tenant in more than one Borrowing Base Property and who leases 25,000 or more rentable square feet, in the aggregate, in all Borrowing Base Properties.
“
Mandatory Principal Payment
” shall have the meaning set forth in
Section 2.3.8
.
“
Material Adverse Effect
” shall mean a material adverse effect on (i) the business, assets, operations or financial or
other condition of any of the Borrower, CRT, or, taken as a whole, the Loan Parties, (ii) the ability of any of the Borrower, CRT, or, taken as a whole, the Loan Parties to perform any material Obligations or to pay any Obligations which it is
or they are obligated to pay in accordance with the terms hereof or of any other Loan Document, or (iii) the rights of, or benefits available to, the Administrative Agent and/or any of the Lenders under any Loan Document.
“
Maturity Date
” shall be either of the Tranche A Term Facility Maturity Date or the Tranche B Term Facility Maturity Date, as
the context of this Agreement requires.
“
Maximum Loan Amount
” shall have the meaning set forth in
Section 2.1.1(a)
.
“
Maximum Rate
” shall have the meaning set forth in
Section 15.2
.
“
Net Operating Income
” shall mean, for any period of determination, (i) net operating income generated by an Individual
Property for such period (i.e., gross operating income, inclusive of any rent loss insurance, less expenses (including Ground Lease Payments (except to the extent of any portion of such payment which is treated as a payment under a capital lease in
accordance with GAAP) and exclusive of debt service, capital expenditures and vacancy allowances and before depreciation and amortization), determined in accordance with GAAP, as generated by, through or under Leases, and (ii) all other income
arising from direct operations of or licenses or operating agreements for any part of the Individual Property determined on a GAAP basis. For purposes hereof, all rental income shall be adjusted for straight line rents. Borrower shall provide the
Administrative Agent with all information and materials required by the Administrative Agent necessary for the determination of Net Operating Income. If any Leases are scheduled to expire during such period of determination, no rents or other
amounts payable under such Leases with respect to any portion of such period occurring after such scheduled expiration date shall be included in the determination of Net Operating Income for such period. If any Leases are scheduled to commence (and
rent and occupancy pursuant thereto are also scheduled to commence) during such period of determination, the rents and other amounts payable under such Leases with respect to any period occurring after the scheduled commencement date shall be
included in the determination of Net Operating Income for such period.
“
Net Worth
” shall mean (a) the sum of
(i) total CRT shareholders’ equity in the Borrower and (ii) the limited partners’ interest in the Borrower (both controlling and non-controlling
19
interests) as of the Calculation Date appearing on the consolidated financial statements of CRT as determined in accordance with GAAP,
plus
(b) depreciation and amortization provided
after March 31, 2013 through the Calculation Date on a cumulative basis.
“
Non-Retail Assets
” shall mean Individual
Properties that generate more than fifteen percent (15%) of base rental revenues from non-retail tenants.
“
Note
”
shall mean, collectively, the various promissory notes payable to each Lender (if requested by such Lender) in the form of
Exhibit B
.
“
Obligations
” shall mean without limitation, all and each of the following, whether now existing or hereafter arising:
(a) Any and all direct and indirect liabilities, debts, and obligations of the Borrower or any Loan Party to the Administrative Agent or any
Lender under or arising out of the Loan Documents, each of every kind, nature, and description.
(b) Each obligation to repay any loan,
advance, indebtedness, note, obligation, overdraft, or amount now or hereafter owing by the Borrower or any Loan Party to the Administrative Agent or any Lender (including all future advances whether or not made pursuant to a commitment by the
Administrative Agent or any Lender) under or arising out of the Loan Documents, whether or not any of such are liquidated, unliquidated, primary, secondary, secured, unsecured, direct, indirect, absolute, contingent, or of any other type, nature, or
description, or by reason of any cause of action which the Administrative Agent or any Lender may hold against the Borrower or any Loan Party including, without limitation, any obligation arising under any Swap Contract with the Administrative Agent
or any Lender.
(c) All notes and other obligations of the Borrower or any Loan Party now or hereafter assigned to or held by the
Administrative Agent or any Lender under or arising out of the Loan Documents, each of every kind, nature, and description.
(d) All
interest, fees, and charges and other amounts which may be charged by the Administrative Agent or any Lender to the Borrower or any Loan Party and/or which may be due from the Borrower or any Loan Party to the Administrative Agent or any Lender from
time to time under or arising out of the Loan Documents.
(e) All costs and expenses incurred or paid by the Administrative Agent or any
Lender in respect of any agreement between the Borrower or any Loan Party and the Administrative Agent or any Lender or instrument furnished by the Borrower or any Loan Party to the Administrative Agent or any Lender (including, without limitation,
costs of collection, attorneys’ reasonable fees, and all court and litigation costs and expenses) in connection with the Loan.
(f)
Any and all covenants of the Borrower or any Loan Party to or with the Administrative Agent or any Lender and any and all obligations of the Borrower or any Loan Party to act or to refrain from acting in accordance with any agreement between the
Borrower or any Loan Party and the Administrative Agent or any Lender or instrument furnished by the Borrower or any Loan Party to the Administrative Agent, any Lender in connection with the Loan.
20
“
Occupancy Ratio
” shall mean with respect to any Borrowing Base Property, the
ratio as determined by the Administrative Agent of the rentable square footage thereof as to which tenants are paying rent, to the total rentable square footage thereof. Notwithstanding the foregoing, for purposes of determining compliance with
Section 7.21.1
of this Agreement, the Occupancy Ratio for any Borrowing Base Property as to which an Event of Loss has occurred shall be equal to the greater of (i) the actual Occupancy Ratio with respect thereto or (ii) the
Occupancy Ratio immediately prior to the said Event of Loss for a period equal to the lesser of (x) six (6) months from the occurrence of the Event of Loss or (y) the determination that the subject Borrowing Base Property is not, or
ceases to be, a Restoration Property.
“
Officer’s Certificate
” shall mean a certificate delivered to the
Administrative Agent by the Borrower, a Borrower Subsidiary, or a Guarantor, as the case may be respectively, which is signed by an Authorized Officer.
“
Other Taxes
” shall mean all present or future stamp or documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.
“
Outside Funding Date
” shall have the meaning set forth in
Section 2.1.1(a)
.
“
Payment Period
” shall mean each period commencing on the first Business Day of each calendar month, and ending on and
including the calendar day immediately preceding the first Business Day of the next calendar month.
“
Participant
” shall
have the meaning set forth in
Section 13.3.4
.
“
Participant Register
” shall have the meaning set forth in
Section 13.3.4
.
“
PBGC
” shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.
“
Permitted Debt
” shall have the meaning set forth in
Section 8.4
.
“
Permitted Distributions
” shall mean (a) so long as no Event of Default exists and is
continuing, or would be created thereby, any Distributions (including the repurchase or redemption of stock of CRT or partnership interests in the Borrower) by the Borrower and CRT, (i) in any amount, provided that such Distributions, when
added to Distributions for each of the last three calendar quarters, to the extent not included in the determination of Adjusted FFO, shall not exceed ninety-five (95%) percent of Adjusted FFO for the just completed four calendar quarters (with
the initial test to be for the quarter ending December 31, 2013);
provided
that any Distributions by the Borrower or CRT shall be permitted as are necessary for CRT to maintain REIT status including any Distributions that are greater
than the amounts set forth in this subclause (a)(i), (ii) concerning the issuance of operating partnership units or stock in return for equity interests in connection with any Permitted Investment, or (iii) in connection with the
21
repurchase or redemption of preferred stock of CRT utilizing the proceeds of new issued preferred or common equity on equal or more favorable terms, or (b) at any time after and during the
continuance of any Event of Default, such Distributions as are necessary for CRT to maintain REIT status (measured on a quarterly basis), all of the foregoing tested by the Borrower on each Calculation Date, such calculation and results to be as
verified by the Administrative Agent.
“
Permitted Liens
” shall have the meaning set forth in
Section 8.2
.
“
Permitted Investments
” shall mean the following:
(a) The Pro Rata Share of Investments in Development Assets (valued at undepreciated Book Value) which, in the aggregate, do not exceed twenty
percent (20%) of Total Asset Value;
(b) The Pro Rata Share of Investments in Land Assets which, in the aggregate, valued at
undepreciated Book Value do not exceed seven and one-half percent (7.5%) of Total Asset Value;
(c) Investments in Unconsolidated CRT
Entities including, without limitation, the purchase of all or any portion of any interests held by persons that are not Wholly-Owned Subsidiaries of the Borrower;
(d) The Pro Rata Share of Investments in Non-Retail Assets which, in the aggregate, do not exceed five percent (5%) of Total Asset Value;
and
(e) Investments in Swap Contracts.
Notwithstanding anything in this Agreement to the contrary, the total Permitted Investments described in Sections (a), (b), and (d) above shall not, in
the aggregate, exceed twenty-five percent (25%) of the Total Asset Value.
“
Person
” shall mean any natural person,
corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“
Plan
” shall mean any multiemployer or single-employer plan as defined in Section 4001 of ERISA, which is maintained or
contributed to by (or to which there is an obligation to contribute of) any Loan Party or any ERISA Affiliate, including each such Plan for the five year period immediately following the latest date on which such Loan Party or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such Plan.
“
Platform
” shall have the meaning set forth
in
Section 7.2.13
.
“
Preliminary Approval
” shall mean the following:
(a) Delivery by the Borrower to the Administrative Agent and the Lenders of the following with respect to any Individual Property proposed to
be a Borrowing Base Property, each such item to the reasonable satisfaction of the Administrative Agent and the Lenders:
(i) A physical
description;
22
(ii) A current rent roll, ARGUS runs and a leasing status report for the Individual Property,
along with operating statements;
(iii) To the extent then available in Borrower’s files, the following: a survey, environmental
reports, copies of existing title insurance policies or a title commitment, engineering reports and similar information; and
(iv) The
Borrower’s certification that to its knowledge the proposed Borrowing Base Property presently satisfies (or is anticipated to satisfy upon the approval of such Borrowing Base Property) the Eligibility Criteria set forth in subsections (a), (d),
(e) and (f), of the definition of Eligibility Criteria.
(b) Administrative Agent shall, within ten (10) Business Days after
delivery of all items described in subsection (a), above, grant or deny the preliminary approval for the proposed Borrowing Base Property.
“
Prepayment Premium
” means a premium payable pro rata to the Tranche B Lenders equal to the following amount for the
following periods:
|
|
|
|
|
If Prepayment of the Tranche B Term
Facility Loans occurs
|
|
Prepayment Fee
|
|
|
|
|
On or before the first anniversary of the Closing Date
|
|
2% of the principal amount of Tranche B Term Facility Loans prepaid.
|
|
|
|
|
After the first anniversary of the Closing Date but on or before the second anniversary of the Closing Date
|
|
1% of the principal amount of Tranche B Term Facility Loans prepaid.
|
|
|
|
|
After the second anniversary of the Closing Date
|
|
0%
|
“
Pro Rata Share
” shall mean a calculation based on the percentage of the Capital Stock of or
other equity interest in any Person owned, directly or indirectly, by the Borrower and/or CRT.
“
Public Lender
” shall
have the meaning set forth in
Section 7.2.13
.
“
Register
” shall have the meaning set forth in
Section 13.3.3
.
“
REIT
” shall mean a “real estate investment trust” as such term is defined in
Section 856 of the Code.
23
“
Related Part(y)ies
” shall mean, with respect to any Person, such Person’s
Affiliates, and the partners, members, shareholders, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.
“
Release Conditions
” shall have the meaning set forth in
Section 3.2
.
“
Release Request
” shall have the meaning set forth in
Section 3.3
.
“
Rent Loss Proceeds
” shall mean the proceeds received under any rent loss or business interruption insurance policies.
“
Repair Work
” shall mean any work necessary to repair, restore, rebuild or replace an affected Borrowing Base Property to its
condition immediately prior to an Event of Loss.
“
Reportable Event
” shall mean an event described in
Section 4043(b) of ERISA with respect to a Plan other than those events as to which the 30-day notice period is waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Regulation Section 2615, or as otherwise now or hereafter
defined in ERISA.
“
Required Lenders
” shall mean, as of any date of determination, Lenders having more than 66 2/3% of
the Total Commitments or, if the Commitment of each Lender to make Loans has been terminated pursuant to
Section 11
, Lenders holding in the aggregate at least 66 2/3% of the Total Outstandings;
provided
that the Commitment of, and
the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“
Restoration Property
” shall mean any Borrowing Base Property as to which an Event of Loss has occurred and as to which the
Repair Work can be completed in six (6) months, as determined by the Administrative Agent in its reasonable discretion.
“
Revolving/Term Facility
” shall mean the revolving credit and term loan facility provided to the Borrower by various lenders
and KeyBank National Association, as administrative agent, pursuant to that certain Second Amended, Restated and Consolidated Loan Agreement dated as of August 1, 2013, and various documents and instruments executed in connection therewith, as
all of the foregoing have been and may hereafter be amended.
“
Secured Debt
” means, with respect to CRT and its
Subsidiaries, (a) all Debt of such Person that is secured in any manner by any Lien on any property owned by such Person, plus (b) such Person’s pro rata share of the Secured Debt of any such Person’s unconsolidated Affiliates;
provided that any loan facilities, if secured only by pledges of equity interests in any Subsidiaries of CRT, shall not be deemed Secured Debt.
“
Secured Debt Ratio
” shall mean the quotient (expressed as a percentage) of (a) all Secured Debt divided by
(b) Total Asset Value.
“
State
” shall mean the State or Commonwealth in which the subject of such reference or any
part thereof is located.
24
“
Statement
” shall have the meaning set forth in
Section 15.17
.
“
Subsidiary
” shall mean, as to any Person, a corporation, partnership, limited liability company or other entity of which
shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other
managers of such corporation, limited liability company, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.
“
Swap Contract
” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward
rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any confirmations relating to the
foregoing transactions and any Master Agreements related thereto, including, without limitation, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”).
“
Swap Termination Value
” shall mean, with respect to the Borrower or a Borrower Subsidiary, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in
accordance therewith, such termination value(s) to be payable by the Borrower or such Subsidiary.
“
Tax Expenses
” shall
mean tax expense (if any) attributable to income and franchise taxes based on or measured by income, whether paid or accrued.
“
Taxes
” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup
withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“
Total Asset Value
” shall mean the aggregate of:
(a) For all Individual Properties (which are neither Individual Properties acquired within the prior ninety (90) days from the
Calculation Date, Development Assets, nor Land Assets but shall include any Individual Properties currently held for sale), the Pro Rata Share of the Calculation Period’s aggregate Adjusted Net Operating Income for all such Individual
Properties, annualized, capitalized at a rate of 7.50%;
plus
25
(b) For Land Assets, and for all Individual Properties which were acquired within the prior
ninety (90) days from the Calculation Date, the Pro Rata Share of the undepreciated Book Value as of the Calculation Date;
plus
(c) For Development Assets, at the Borrower’s option, either the Pro Rata Share of the undepreciated Book Value as of the Calculation
Date or the Pro Rata Share of the Calculations Period’s aggregate Adjusted Net Operating Income for such Development Asset, annualized, capitalized at a rate of 7.50%;
plus
(d) For all unrestricted cash and cash equivalent investments, restricted cash held by a qualified intermediary, and escrows owned by the
Consolidated CRT Entities and the Unconsolidated CRT Entities, the Pro Rata Share of the Book Value as of the Calculation Date of such assets; plus
(e) Deposits corresponding to outstanding letters of credit.
The Pro Rata Share of Development Assets completed within the prior ninety (90) days from a Calculation Date will be valued as set forth
in (c) above for a maximum of one hundred eighty (180) days from completion (and continuing until end of such Calculation Period) and based on Adjusted Net Operating Income under subsection (a) above thereafter.
“
Total Commitment
” shall mean the sum of the Commitments of the Lenders, as in effect from time to time. On the Closing Date
the Total Commitment equals $150,000,000.00, consisting of the $75,000,000.00 Total Tranche A Term Commitments and $75,000,000.00 Total Tranche B Term Commitments.
“
Total Outstandings
” shall mean the aggregate Total Tranche A Term Outstandings and Total Tranche B Term Outstandings.
“
Total Tranche A Term Commitments
” shall mean the aggregate Tranche A Term Commitments of the Lenders from time to time.
“
Total Tranche A Term Outstandings
” shall mean on any date the aggregate outstanding principal amount of the Loans under the
Tranche A Term Facility after giving effect to any borrowings and prepayments or repayments of said Loans occurring on such date.
“
Total Tranche B Term Commitments
” shall mean the aggregate Tranche B Term Commitments of the Lenders from time to time.
“
Total Tranche B Term Outstandings
” shall mean on any date the aggregate outstanding principal amount of the Loans under the
Tranche B Term Facility after giving effect to any borrowings and prepayments or repayments of said Loans occurring on such date.
“
Tranche A Lender
” shall mean each Lender that issues a Tranche A Term Commitment and/or holds Tranche A Term Facility Loans
hereunder.
“
Tranche A Required Lenders
” shall mean, as of any date of determination, Tranche A Lenders having more than
66 2/3% of the Total Tranche A Term Commitments or, if the
26
Commitment of each Lender to make Tranche A Loans has been terminated pursuant to the terms hereof, Lenders holding in the aggregate at least 66 2/3% of the Total Tranche A Term Outstandings;
provided
that the Commitment of, and the portion of the Total Tranche A Term Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Tranche A Required Lenders.
“
Tranche A Term Commitment
” shall mean the amount set forth on
Schedule 1.1(a)
hereto as the amount of such
Lender’s commitment to make Loans under the Tranche A Term Facility, as may be amended from time to time by the Administrative Agent as provided in
Section 2.1.1(d)
and/or
Article 13
.
“
Tranche A Term Facility
” shall mean that certain senior unsecured term loan facility provided by Lenders to the Borrower in
an amount of up to $75,000,000.00 in accordance with the terms and conditions herein, as such amount may be adjusted pursuant to the terms of this Agreement.
“
Tranche A Term Facility Loans
” shall mean the loans made by the Tranche A Lenders pursuant to
Section 2.1
.
“
Tranche A Term Facility Maturity
” shall mean the Tranche A Term Facility Maturity Date, or, in any instance, upon
acceleration of the Tranche A Term Facility Loans, if such Tranche A Term Facility Loans have been accelerated by the Lenders upon an Event of Default.
“
Tranche A Term Facility Maturity Date
” shall have the meaning set forth in
Section 2.2.1
.
“
Tranche A Term Facility Term
” shall have the meaning set forth in
Section 2.2.1
.
“
Tranche B Lender
” shall mean each Lender that issues a Tranche B Term Commitment and/or holds Tranche B Term Facility Loans
hereunder.
“
Tranche B Required Lenders
” shall mean, as of any date of determination, Tranche B Lenders having more than
66 2/3% of the Total Tranche B Term Commitments or, if the Commitment of each Lender to make Tranche B Loans has been terminated pursuant to the terms hereof, Lenders holding in the aggregate at least 66 2/3% of the Total Tranche B Term
Outstandings;
provided
that the Commitment of, and the portion of the Total Tranche B Term Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Tranche B Required Lenders.
“
Tranche B Term Commitment
” shall mean the amount set forth on
Schedule 1.1(a)
hereto as the amount of such
Lender’s commitment to make a Loan under the Tranche B Term Facility, as may be amended from time to time by the Administrative Agent as provided in
Section 2.1.1(d)
and/or Article 13.
“
Tranche B Term Facility
” shall mean that certain senior unsecured term loan facility made by Lenders to the Borrower in the
amount of $75,000,000.00 in accordance with the terms and conditions herein, as such amount may be adjusted pursuant to the terms of this Agreement.
27
“
Tranche B Term Facility Loans
” shall mean the loans made by the Tranche B
Lenders pursuant to
Section 2.1
.
“
Tranche B Term Facility Maturity
” shall mean the Tranche B Term Facility
Maturity Date, or, in any instance, upon acceleration of the Tranche B Term Facility Loans, if such Tranche B Term Facility Loans have been accelerated by the Lenders upon an Event of Default.
“
Tranche B Term Facility Maturity Date
” shall have the meaning set forth in
Section 2.2.2
.
“
Tranche B Term Facility Term
” shall have the meaning set forth in
Section 2.2.2
.
“
Treasury Rate
” shall mean, as of the date of any calculation or determination, the latest published rate for United States
Treasury Notes or Bills (but the rate on Bills issued on a discounted basis shall be converted to a bond equivalent) as published weekly in the Federal Reserve Statistical Release H.15(519) of Selected Interest Rates in an amount which approximates
(as determined by Administrative Agent) the amount (i) approximately comparable to the portion of the Loan to which the Treasury Rate applies for the Interest Period, or (ii) in the case of a prepayment, the amount prepaid and with a
maturity closest to the original maturity of the installment which is prepaid in whole or in part.
“
Type
” shall mean,
with respect to any Loan, its character as a Base Rate Advance or a LIBO Rate Advance.
“
UCC
” or the “
Uniform
Commercial Code
” shall mean the Uniform Commercial Code in effect in the State of New York, provided, that as same relates to a Borrowing Base Property, the UCC shall mean the Uniform Commercial Code as adopted in such jurisdiction.
“
Unconsolidated CRT Entity
” or “
Unconsolidated CRT Entities
” shall mean each Person as to which the Borrower
and/or CRT own, directly or indirectly, any Capital Stock, but which is not a Consolidated Subsidiary.
“
United States
”
and “
U.S.
” shall each mean the United States of America.
“
Unreimbursed Amount
” shall have the meaning
set forth in
Section 2.7.3(a)
.
“
Unsecured Debt
” means any Debt (including indebtedness arising under any
Swap Contract) of CRT and its Subsidiaries which is not Secured Debt.
“
Variable Rate Indebtedness
” shall mean any Debt
that bears interest at a variable rate without the benefit of an interest rate hedge or other interest rate protection agreement. For the avoidance of doubt, Variable Rate Indebtedness shall not include the notional amount of caps which protect
against an upward movement of the LIBO Rate up to 300 basis points.
“
Wholly-Owned Subsidiary
” shall mean, with respect
to any Person, any other Person as to which one-hundred (100%) percent of the Capital Stock thereof is owned, directly or indirectly, by such Person; provided for purposes of this definition Cedar Riverview, LP, and Hamilton FC Associates, L.P.
shall be deemed to be a Wholly-Owned Subsidiary of the Borrower.
28
1.2
Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “
include
,” “
includes
” and “
including
” shall be deemed to be followed by the phrase
“without limitation.” The word “
will
” shall be construed to have the same meaning and effect as the word “
shall
.” Unless the context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Formation Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions
on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns subject to restrictions on
assignments as set forth in this Agreement, (iii) the words “
herein
,” “
hereof
” and “
hereunder
,” and words of similar import when used in any Loan Document, shall be construed to refer to such
Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules
to, the Loan Document in which such references appear, (v) any reference to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such Law and any reference to any Law or regulation
shall, unless otherwise specified, refer to such Law or regulation as amended, modified or supplemented from time to time, and (vi) the words “
asset
” and “
property
” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified date, the word “
from
”
means “
from and including
;” the words “
to
” and “
until
” each mean “
to but excluding
;” and the word “
through
” means “
to and including
.”
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.3
Accounting Terms.
(a)
Generally
. All accounting terms not specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as
29
in effect from time to time, applied in a manner consistent with that used in preparing the financial statements required by
Section 7.2.1
,
except
as otherwise specifically
prescribed herein.
(b)
Changes in GAAP
. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement
to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);
provided
that
, until so amended, (i) such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
1.4
Rounding.
Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be
calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number). For example purposes only, in calculating the Fixed Charge Ratio, the calculation shall initially result in three numbers right of the decimal point. If the last number is four or less, the total number
shall be rounded down. If the last number is 5 or more, the total number shall be rounded up.
1.5
Times of Day.
Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as
applicable).
2.1
General Loan Provisions.
2.1.1
Loans.
(a) Subject to all of the terms and conditions hereof, the Lenders hereby agree to make up to an aggregate of three
(3) Loan Advances (with simultaneous Loan Advances under the Tranche A Term Facility and Tranche B Term Facility constituting one (1) Loan Advance) to the Borrower under the Tranche A Term Facility and Tranche B Term Facility between the
date hereof and July 1, 2014 (the “
Outside Funding Date
”);
provided
, that the (i) Total Outstandings shall at no time exceed the lesser of (A) the Total Commitment or (B) the Borrowing Base Value; (the
lesser of (A) or (B) being the “
Maximum Loan Amount
”), (ii) the Total Tranche A Term Outstandings shall not exceed the Total Tranche A Term Commitments, and (iii) the Total Tranche B Term
30
Outstandings shall not exceed the Total Tranche B Term Commitments. The Tranche A Term Facility and the Tranche B Term Facility may not be reborrowed under any circumstances, and, subject to the
provisions of
Section 2.1.1(d)
below, no Loan Advances shall be made after July 1, 2014.
(b) Subject to
Section 2.1.1(a) above, amounts advanced hereunder shall be allocated to the Tranche A Term Facility and Tranche B Term Facility in such fashion as the Borrower may request.
(c) The obligations of the Lenders hereunder are several and independent and not joint. No Lender shall become obligated to
advance more than its Commitment Percentage of a respective Tranche A Loan and/or Tranche B Loan including, without limitation, as a result of the failure of any Lender to fulfill its obligations hereunder.
(d) Provided no Default or Event of Default shall then be in existence, the Borrower shall have the right, on one or more
occasions prior to February 11
,
2017, to elect to increase the either the Total Tranche A Term Commitments and/or the Total Tranche B Term Commitments;
provided
,
however
, that (i) the amount of each such increase shall
not be less than Ten Million Dollars ($10,000,000) or in increments of Five Million Dollars ($5,000,000.00 ) in excess thereof, and (ii) the aggregate amount of all such increases shall not cause the Total Commitment to exceed Three Hundred
Million Dollars ($300,000,000). Any such increase in the Total Commitment shall be allocated to the Tranche A Term Facility and/or the Tranche B Term Facility in such amounts as the Borrower may request. Such right may be exercised by the Borrower
by written notice to the Administrative Agent, which election shall designate the requested increase in the Total Commitment and to which of the Tranche A Term Facility and/or the Tranche B Term Facility such request is being made. At the time of
sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of
delivery of such notice to the Lenders), and each Lender shall endeavor to respond as promptly as possible within such time period. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its
Commitment (which decision shall be in its sole discretion) and, if so, whether by an amount equal to, greater than, or less than its Commitment Percentage of such requested increase. Any Lender not responding within such time period shall be deemed
to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the
approval of the Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed), the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement (each a “
Joinder
Agreement
”) in form and substance reasonably satisfactory to the Administrative Agent and its counsel. If the Total Commitment is increased in accordance with this Section, the
31
Administrative Agent and the Borrower shall determine the effective date (the “
Increase Effective Date
”) and the final allocation of each Lender’s increased Commitments
among the Tranche A Term Facility and the Tranche B Term Facility, and if such increase is not pro rata among the Tranche A Term Facility and the Tranche B Term Facility, the new or increased Commitments issued in connection with such increase, and
the existing Tranche A Term Commitments and Tranche B Term Commitments of the Lenders, shall be adjusted (but any existing Commitment of a Lender will not be increased unless such Lender has elected to increase its Commitment) so as to at all times
provide that each Lender shall have a pro rata Commitment in each of the Tranche A Term Facility and the Tranche B Term Facility. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase
(with such increase being pro rata among existing Lenders choosing to increase their Commitments) and the Increase Effective Date. As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of the
Borrower dated as of the Increase Effective Date signed by an Authorized Officer of the Borrower (i) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, and (ii) certifying that,
before and after giving effect to such increase, (A) the representations and warranties contained in
Article 6
and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date, except to
the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this
Section 2.1.1(d)
,
the representations and warranties contained in
Section 6.8
shall be deemed to refer to the most recent statements furnished to the Administrative Agent, and except as to the representations and warranties in
Sections 6.4, 6.7,
6.9
, and
6.14
which may be modified only to reflect events occurring after the date hereof as specifically disclosed in writing to Administrative Agent prior to or simultaneously with such written request and (B) no Default or Event
of Default exists. The amount of any applicable increase in the Tranche A Term Facility and/or the Tranche B Term Facility shall be funded on such Increase Effective Date. This Section shall supersede any provisions in
Sections 12.2
or
13.4.1
to the contrary.
2.1.2
Procedures and Limits.
Subject to the provisions of
Section 2.1.1(a)
and
Section 2.1.1(d)
, the Lenders shall, subject to the compliance with all of the other terms, conditions and provisions of this Agreement and the absence of any Default or Event of Default at the time of
such disbursement, make disbursements to the Borrower of Loan Advances in installments in accordance with the following:
(a)
Written Requests.
Loan Advances shall be made, at the Borrower’s written request to Administrative Agent, on
the basis of written requests, made in accordance with the method and procedures described in
Section 2.1.3
below; and Administrative Agent shall act upon such requests within three (3) Business Days following the receipt of a
written request from Borrower for a LIBOR Rate Advance and within one (1) Business Day following the receipt of a written request from Borrower for a Base Rate Advance, which
32
action may include, without limitation, funding the requested Loan Advance or specifying the basis for not funding and, when applicable, requesting additional information and supporting
documentation. The date on which any Loan Advance is funded is herein called an “
Advance Date
.”
(b)
Requisitions, Certifications.
Each request for a Loan Advance shall be in writing and in the form attached hereto as
Exhibit A
(a “
Loan Notice
”). Each such request shall specify (i) the amount of the Loan Advance
requested, (ii) the purpose of the Loan Advance requested, (iii) the Total Outstandings (including the funding of the Loan Advance being requested), (iv) calculations evidencing the Borrower’s continued compliance with the
Financial Covenants, as satisfied by the Closing Compliance Certificate, or once delivered, the most recent Compliance Certificate delivered by the Borrower, (v) the requested interest rate option, and (vi) the Interest Period (if
applicable). Each request for a Loan Advance hereunder shall be for (a) a minimum amount as required by
Section 2.3.6
, (b) an amount not to exceed (x) the Maximum Loan Amount
less
(y) the Total Outstandings
(after giving effect to such Loan Advance), (c) as to the Tranche A Term Facility, an amount not to exceed (x) the Total Tranche A Term Commitments, less (y) the total Tranche A Term Facility Loans previously advanced under the
Tranche A Term Facility (after giving effect to any such pending advance of Tranche A Term Facility Loans), and (d) as to the Tranche B Term Facility, an amount not to exceed (x) the Total Tranche B Term Commitments, less (y) the
total Tranche B Term Facility Loans previously advanced under the Tranche B Term Facility (after giving effect to any such pending advance of Tranche B Term Facility Loans).
2.1.3
Funding Procedures.
Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender
of the Advance Date and of the amount of its Commitment Percentage of the applicable Loans. In the case of a Loan Advance, each Lender shall make the amount of its Commitment Percentage of such Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified as the Advance Date in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in
Section 5.2
(and, if such Loan Advance is the initial credit extension,
Section 5.1
), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the Borrower on the books of KeyBank with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the Administrative Agent by the
Borrower.
2.2
Term of Loan.
2.2.1
Tranche A Term Facility.
The Tranche A Term Facility shall be for a term (the “
Tranche A Term
Facility Term
”) commencing on the date hereof and ending on February 11
,
2019 (the “
Tranche A Term Facility Maturity Date
”) or such earlier date as the Tranche A Term Facility is accelerated pursuant to the
terms of this Agreement upon an Event of Default.
33
2.2.2
Tranche B Term Facility.
The Tranche B Term Facility shall be for a
term (the “
Tranche B Term Facility Term
”) commencing on the date hereof and ending on February 11, 2021 (the “
Tranche B Term Facility Maturity Date
”) or such earlier date as the Tranche B Term Facility is
accelerated pursuant to the terms of this Agreement upon an Event of Default.
2.2.3
Termination of Commitments.
The Borrower shall have the right to terminate this Agreement prior to the originally scheduled Maturity Date by providing the
Administrative Agent with ten (10) days’ written notice of the Borrower’s intention to terminate this Agreement (the date of such termination being the “
Borrower Termination Date
”). In the event that the Borrower
provides such written notice to the Administrative Agent, (i) as of the date of the notice, the Lenders shall have no further obligation to make or issue, and the Borrower shall have no further right to receive or request, any Credit Extension
hereunder, and (ii) the Borrower shall be obligated on the Borrower Termination Date to pay in full all accrued interest, principal and other charges due with respect to the Loan, including, without limitation, any Breakage Fees or Prepayment
Premiums due on account of such payment.
2.3
Interest Rate and Payment Terms
.
The Loan shall be payable as to
interest and principal in accordance with the provisions of this Agreement. This Agreement also provides for interest at a Default Rate, Late Charges and prepayment rights and fees. All payments for the account of Lenders shall be applied to the
respective accounts of the Lenders in accordance with each Lender’s Commitment Percentage of the Loan. Any and all interest rate selection and conversion provisions in this Agreement are to be administered by the Administrative Agent and to be
allocated on a pro rata basis to the portion of the balance held by each Lender based upon such Lender’s Commitment Percentage.
2.3.1
Borrower’s Options.
Principal amounts outstanding under the Loan shall bear interest at the following rates,
at Borrower’s selection, subject to the conditions and limitations provided for in this Agreement: (i) the Base Rate Accrual Rate or (ii) LIBO Rate plus the Applicable Margin. Borrower’s right to select pricing options shall
cease upon the occurrence and during the continuation of any Event of Default.
2.3.2
Selection To Be Made.
Borrower
shall select, and thereafter may change the selection of, the applicable interest rate, from the alternatives otherwise provided for in this Agreement, by giving Administrative Agent a Loan Notice (in accordance with the requirements of
Section 2.3.3
, below): (i) three (3) Business Days prior to each Loan Advance, (ii) three (3) Business Days prior to the end of each Interest Period applicable to a LIBO Rate Advance which shall be continued as a LIBO
Rate Advance, or (iii) three (3) Business Days prior to any Business Day on which Borrower desires to convert an outstanding Base Rate Advance to a LIBO Rate Advance.
2.3.3
Notice.
Each Loan Advance, each conversion of Loans from one Type to the other, and each continuation of a LIBO
Rate Advance shall be made upon the Authorized Officer’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later
34
than 11:00 a.m. (i) with respect to a LIBO Rate Advance, three (3) Business Days prior to, or (ii) with respect to a Base Rate Advance, the requested date of any Loan Advance,
conversion or continuation. Each telephonic notice pursuant to this
Section 2.3.3
must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by an Authorized Officer of
the Borrower.
2.3.4
If No Notice.
If (a) the Borrower fails to select an interest rate option in accordance
with the foregoing prior to a Loan Advance, or at least three (3) Business Days prior to the last day of the applicable Interest Period of an outstanding LIBO Rate Advance, or (b) a LIBO Rate Advance is not available, then any new Loan
Advance made shall be deemed to be a Base Rate Advance, and on the last day of the applicable Interest Period all outstanding principal amounts of the applicable LIBO Rate Advance shall be deemed converted to a Base Rate Advance.
2.3.5
Telephonic Notice.
Without any way limiting the Borrower’s obligation to confirm in writing any telephonic
notice, the Administrative Agent may act without liability upon the basis of telephonic notice believed by the Administrative Agent in good faith to be from the Borrower prior to receipt of written confirmation. In each case the Borrower hereby
waives the right to dispute the Administrative Agent’s record of the terms of such telephonic Loan Notice in the absence of manifest error.
2.3.6
Limits On Options.
Each LIBO Rate Advance shall be in a minimum amount of $100,000 or a whole multiple of $100,000
in excess thereof and each Base Rate Advance shall be in a minimum amount of $100,000 or a whole multiple of $100,000 in excess thereof. At no time shall there be outstanding a total of more than six (6) LIBO Rate Advances outstanding at any
time.
2.3.7
Payment and Calculation of Interest.
All interest for each Payment Period shall be payable in arrears
commencing March 3, 2014 and on the first Business Day of each month thereafter until the principal together with all interest and other charges payable with respect to the Loan shall be fully paid. All computations of interest for Base Rate
Advances shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.3.11
, bear interest for one day. Interest hereunder shall be due and payable in accordance with the terms
hereof before and after judgment, and before and after the commencement of any proceeding, under any Debtor Relief Law.
2.3.8
Mandatory Principal Payments.
If, on any day, the Total Outstandings exceed the Maximum Loan Amount, then the Borrower shall make a principal payment on
Unsecured Debt of CRT and its Subsidiaries, in the amount of such excess, in immediately available funds within ten (10)
35
Business Days of demand from the Administrative Agent (a “
Mandatory Principal Payment
”); to the extent any such payment is made by the Borrower for application to the Total
Outstandings such prepayment shall be applied on a pro rata basis to the Tranche A Term Facility and the Tranche B Term Facility; provided, however, that if during such ten (10) Business Day period, the Borrower delivers to the Administrative
Agent Funding Evidence, such ten (10) Business Day period shall be extended for such additional time as the Administrative Agent determines, in its reasonable discretion, to be required by the Borrower to make the Mandatory Principal Payment
but in no event shall such period exceed a maximum of sixty (60) days from the date that the Mandatory Principal Payment would otherwise be due hereunder.
2.3.9
Prepayment.
Any Loan or any portion thereof made under the Tranche A Term Facility may be prepaid in full or in
part at any time upon two (2) Business Days prior written notice to the Administrative Agent without premium or penalty with respect to Base Rate Advances and, with respect to LIBO Rate Advances, subject to payment of any applicable Breakage
Fee. Any Loan or any portion thereof made under the Tranche B Term Facility may be prepaid in full or in part at any time upon two (2) Business Days prior written notice to the Administrative Agent subject to the payment of (a) with
respect to Base Rate Advances, any applicable Prepayment Premium and, (b) with respect to LIBO Rate Advances, any applicable Prepayment Premium and any applicable Breakage Fee. Amounts prepaid under the Tranche A Term Facility and Tranche B
Term Facility may not be reborrowed under any circumstances.
2.3.10
Maturity.
At either of the Tranche A Term
Facility Maturity or the Tranche B Term Facility Maturity, as applicable, all accrued interest, principal and other charges due with respect to the respective facility shall be due and payable in full and the principal balance and such other
charges, including unpaid interest, shall, at the option of the Administrative Agent, continue to bear interest thereafter at the Default Rate until so paid.
2.3.11
Method of Payment; Date of Credit; Administrative Agent’s Clawback.
(a)
General.
All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the
Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Commitment Percentage (or other applicable
share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day
and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
36
(b) (i)
Funding by Lenders; Presumption by Administrative Agent.
Unless
the Administrative Agent shall have received notice from a Lender prior to the proposed date of any LIBO Rate Advance (or, in the case of any Base Rate Advance, prior to 12:00 noon on the date of such Loan Advance) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Loan Advance, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with
Section 2.1
(or, in the case of a
Base Rate Advance, that such Lender has made such share available in accordance with and at the time required by
Section 2.1
) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Loan Advance available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the
case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation,
plus
any administrative, processing or
similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Advances. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share
of the applicable Loan Advance to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Loan Advance and the Borrower shall have no further obligation with respect thereto under this
Section 2.3.11(b)(i)
in respect of such Lender’s share of the Loan Advance; it being understood that such amount advanced by such Lender shall constitute a Loan for all purposes hereunder. Any payment by the Borrower shall be
without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii)
Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder, stating that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower
has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is
37
distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under this subsection (b) shall be conclusive, absent manifest error.
(c)
Failure to Satisfy
Conditions Precedent.
If any Lender makes available to the Administrative Agent funds for any Loan Advance to be made by such Lender as provided in the foregoing provisions of this
Section 2
, and such funds are not made available to
the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in
Section 5
are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds
(in like funds as received from such Lender) to such Lender, without interest.
(d)
Funding Source.
Nothing herein
shall be deemed to obligate any Lender to obtain the funds for any Loan Advance in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan Advance in any particular
place or manner.
2.3.12
Billings.
The Administrative Agent may submit monthly billings reflecting payments due;
however, any changes in the interest rate which occur between the date of billing and the due date may be reflected in the billing for a subsequent month. Neither the failure of the Administrative Agent to submit a billing nor any error in any such
billing shall excuse the Borrower from the obligation to make full payment of all the Borrower’s payment obligations when due.
2.3.13
Default Rate.
(a) If any Event of Default has occurred and is continuing pursuant to
Section 10.1.1
, the Borrower shall pay
interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(b) In the sole discretion of the Administrative Agent or upon the request of the Required Lenders, while any other Event of
Default exists, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(c) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon
demand.
2.3.14
Late Charges.
The Borrower shall pay a late charge (herein, the “
Late Charge
”)
equal to five percent (5%) of the amount of any interest which is not paid within ten (10) days of the due date thereof. Late charges are: (a) payable in addition to,
38
and not in limitation of, the Default Rate, (b) intended to compensate the Administrative Agent and the Lenders for administrative and processing costs incident to late payments,
(c) are not interest, and (d) shall not be subject to refund or rebate or credited against any other amount due.
2.3.15
Breakage Fee.
The Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders,
immediately upon request and notwithstanding contrary provisions contained in any of the Loan Documents, such amounts as shall, in the conclusive judgment of the Administrative Agent (in the absence of manifest error), compensate the Administrative
Agent and the Lenders for the loss, cost or expense which it may reasonably incur as a result of (i) any payment or prepayment, under any circumstances whatsoever, whether voluntary or involuntary, of all or any portion of a LIBO Rate Advance
on a date other than the last day of the applicable Interest Period of a LIBO Rate Advance, (ii) the conversion, for any reason whatsoever, whether voluntary or involuntary, of any LIBO Rate Advance to a Base Rate Advance on a date other than
the last day of the applicable Interest Period, (iii) the failure of all or a portion of a Loan Advance which was to have borne interest at the LIBO Rate pursuant to the request of the Borrower to be made under the Loan Agreement (except as a
result of any act or omission of Lender), or (iv) the failure of the Borrower to borrow in accordance with any request submitted by it for a LIBO Rate Advance. Such amounts payable by the Borrower shall be equal to any administrative costs
actually incurred plus any amounts required to compensate for any loss, cost or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by the Administrative Agent or any Lender to fund or maintain a LIBO
Rate Advance (herein, collectively, the “
Breakage Fee
”). A certificate from a Lender provided to the Borrower by the Administrative Agent setting forth the calculation and amount of its Breakage Fee shall be conclusive absent
manifest error.
2.3.16
Borrower Information.
The parties understand that the applicable interest rate for the
Borrower’s Obligations and certain fees set forth herein may be determined and/or adjusted from time to time based upon certain financial ratios and/or other information to be provided or certified to the Lenders by Borrower (the
“
Borrower Information
”). If it is subsequently determined that any such Borrower Information was incorrect (for whatever reason, including without limitation because of a subsequent restatement of earnings by the Borrower) at the
time it was delivered to the Agent, and if the applicable interest rate or fees calculated for any period were different than they should have been had the correct information been timely provided, then, such interest rate and such fees for such
period shall be automatically recalculated using correct Borrower Information. The Administrative Agent shall promptly notify Borrower in writing of any additional interest and fees due because of such recalculation, and the Borrower shall pay such
additional interest or fees due to the Administrative Agent, for the account of each Lender, within five (5) Business Days of receipt of such written notice. Borrower shall receive a credit or refund of any overpayment promptly after such
determination. Any recalculation of interest or fees required by this provision shall survive the termination of this Agreement, and this provision shall not in any way limit any of the Administrative Agent’s or any Lender’s other rights
under this Agreement
39
2.4
Loan Fees.
2.4.1
Loan Fees.
The Borrower shall pay the Administrative Agent for the account of the parties specified therein the
various fees in accordance with the Fee Letter.
2.4.2
Unused Fee
. The Borrower agrees to pay an unused line fee
(the “
Line Fee
”) to the Administrative Agent, for the pro rata benefit of the Tranche A Lenders, as to any amounts due under (a) below, and the Tranche B Lenders, as to any amounts due under (b) below, from and after
May 11, 2014 through July 1, 2014. The amount of the Line Fee on any given day shall equal, as applicable (a) the Line Percentage multiplied by the amount on such day by which the Total Tranche A Term Commitments exceeds the total
Tranche A Term Facility Loans previously advanced under the Tranche A Term Facility, and (b) the applicable Line Percentage multiplied by the amount on such day by which the Total Tranche B Term Commitments exceeds the total Tranche B Term
Facility Loans previously advanced under the Tranche B Term Facility. The Line Fee shall be payable to the Administrative Agent quarterly in arrears on the first day of each calendar quarter for the immediately preceding calendar quarter or portion
thereof, with the first and last payments to be prorated based upon the partial calendar quarters to which they apply.
2.4.3
Payment of Fees Generally.
All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, in the case of facility fees and participation fees, to the Lenders. Except as otherwise provided herein or in the Fee Letter, fees paid under this Agreement shall not be refundable under any
circumstances.
2.5
Intentionally Omitted.
2.6
Additional Provisions Related to Interest Rate Selection.
2.6.1
Increased Costs
. If any Change in Law shall:
(a) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the LIBO Rate);
(b) subject any Lender to any tax of any kind whatsoever with respect to this Agreement or any LIBO Rate Advance made by it, or
change the basis of taxation of payments to such Lender in respect thereof; or
(c) impose on any Lender or the London
interbank market any other condition, cost or expense affecting this Agreement or LIBO Rate Advances made by such Lender;
and the result
of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBO Rate Advance (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender
hereunder
40
(whether of principal, interest or any other amount) then, promptly upon request of such Lender, the Borrower will pay to such Lender, such additional amount or amounts as will compensate such
Lender, for such additional costs incurred or reduction suffered. A certificate from a Lender provided to the Borrower by the Administrative Agent setting forth such amounts together with calculations thereof shall be conclusive absent manifest
error.
2.6.2
Capital Requirements
. If any Lender determines that any Change in Law affecting such Lender or any
Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such
Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time (and in any event within twenty (20) days) the Borrower
will pay to such Lender, such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered. A certificate from a Lender provided to the Borrower by the Administrative Agent setting
forth such amounts together with calculations thereof shall be conclusive absent manifest error.
2.6.3
Illegality.
Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful, or any central bank or Governmental Authority shall assert by directive, guideline or otherwise, that it is unlawful, for any Lender to make or
maintain LIBO Rate Advances or to continue to fund or maintain LIBO Rate Advances, and such Lender, without cost or expense, cannot hold or administer its Commitment from an office where maintaining and funding LIBO Rate Advances can be
accomplished, then, on written notice thereof and demand by the Administrative Agent to the Borrower, (a) the obligation of the Administrative Agent to make LIBO Rate Advances and to convert or continue any Loan as LIBO Rate Advances shall
terminate and (b) at the end of the applicable Interest Period, the Borrower shall convert all principal outstanding under this Agreement into Base Rate Advances.
2.6.4
Availability.
If, before or after the Borrower has selected to take or maintain a LIBO Rate Advance, but before
the Interest Period with respect thereto commences, the Administrative Agent notifies the Borrower that:
(a) Dollar
deposits in the amount and for the maturity requested are not available to the Lenders in the London interbank market at the rate specified in the definition of LIBO Rate set forth above, or
(b) Reasonable means do not exist for the Administrative Agent to determine the LIBO Rate for the amounts and maturity
requested,
then the principal which would have been a LIBO Rate Advance shall be a Base Rate Advance.
41
2.6.5
Base Rate Advances.
Each Base Rate Advance shall continue as a Base
Rate Advance until the Maturity Date, unless sooner converted, in whole or in part, to a LIBO Rate Advance, subject to the limitations and conditions set forth in this Agreement.
2.6.6
Delay in Requests.
Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing
provisions of this Section shall not constitute a waiver of such Lender’s right to demand such compensation,
provided
that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for
any increased costs incurred or reductions suffered more than six months prior to the date that such Lender notifies the Borrower of the change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim
compensation therefor (except that, if the change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
2.6.7
Mitigation.
(a)
Designation of a Different Lending Office.
If any Lender requests compensation under this
Section 2.6
,
or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.8
, then such Lender shall, as applicable, use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to
Sections 2.8
or
2.6.1
,
2.6.2
, as the case may be, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)
Replacement of Lenders.
If any Lender requests compensation under
Sections 2.6.1
or
2.6.2
, or if the
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.8
, the Borrower may replace such Lender in accordance with
Section 13.2.4
.
2.6.8
Survival.
All of the Borrower’s obligations under this
Section 2.6
shall survive termination of
the Total Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent.
2.6.9
Taxes
. Notwithstanding anything herein to the contrary, no additional amounts shall be payable by Borrower under this
Section 2.6
with respect to Taxes on any amounts payable under the Loan Documents, which shall be governed by
the provisions of
Section 2.8
hereof.
42
2.7
Intentionally Omitted.
2.8
Taxes.
2.8.1
Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(a) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document
(including, without limitation, each Guaranty) shall, to the extent permitted by applicable Laws, be made free and clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require a Loan Party or the Administrative
Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by such Loan Party or the Administrative Agent, as the case may be, upon the basis of the information and documentation to be
delivered pursuant to
Section 2.8.5
below.
(b) If the Borrower or the Administrative Agent shall be required
by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the
Administrative Agent to be required based upon the information and documentation it has received pursuant to
Section 2.8.5
below (unless the Administrative Agent is not a “United States person” within the meaning of
Section 7701(a)(30) of the Code, in which case Borrower shall withhold or make such deductions as are determined by the Borrower to be required based on the information and documentation it has received pursuant to
Section 2.8.5
below), (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code (unless the Administrative Agent is not a “United States person” within the
meaning of Section 7701(a)(30) of the Code, in which case Borrower shall timely pay the full amount withheld and deducted to the relevant Governmental Authority in accordance with the Code), and (C) to the extent that the withholding or
deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender receives an amount equal to the sum it would have received had no such withholding or deduction been made.
2.8.2
Payment of Other Taxes by the Borrower.
Without limiting the provisions of
Section 2.8.1
above, the
Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Laws.
43
2.8.3
Tax Indemnifications.
(a) Without limiting the provisions of
Sections 2.8.1
or
2.8.2
above, the Borrower shall, and does hereby,
indemnify the Administrative Agent and each Lender, and shall make payment in respect thereof within 20 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted by the Borrower or the Administrative Agent or paid by the Administrative Agent or such Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The Borrower shall also, and does hereby,
indemnify the Administrative Agent, and shall make payment in respect thereof within twenty (20) days after written demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required
by clause (b) of this subsection. A certificate as to the amount of any such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of
a Lender, shall be conclusive absent manifest error.
(b) Without limiting the provisions of
Sections 2.8.1
or
2.8.2
above, each Lender shall, and does hereby, indemnify the Borrower and the Administrative Agent, and shall make payment in respect thereof within twenty (20) days after written demand therefor, against any and all Taxes and any and
all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the Borrower or the Administrative Agent) incurred by or asserted against the Borrower or the Administrative
Agent by any Governmental Authority as a result of the failure by such Lender to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender to the Borrower or the Administrative
Agent pursuant to
Section 2.8.5
. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to
the Administrative Agent under this clause (b). The agreements in this clause (b) shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all other Obligations.
2.8.4
Evidence of Payments.
Upon
request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or the Administrative Agent to a Governmental Authority as provided in this
Section 2.8
, the Borrower shall deliver to
the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Law
to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
44
2.8.5
Status of Lenders; Tax Documentation.
(a) Each Lender shall deliver to the Borrower and to the Administrative Agent, at the time or times prescribed by applicable
Laws or when reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested
information as will permit the Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower pursuant to this Agreement or otherwise to
establish such Lender’s status for withholding tax purposes in the applicable jurisdiction.
(b) Without limiting the
generality of the foregoing, if the Borrower is resident for tax purposes in the United States,
(i) Any Lender that is a
“United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information
prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding
or information reporting requirements; and
(ii) Each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled
to do so), whichever of the following is applicable:
(A) Executed originals of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(B) Executed originals
of Internal Revenue Service Form W-8ECI,
(C) Executed originals of Internal Revenue Service Form W-8IMY and all required
supporting documentation,
45
(D) In the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue
Service Form W-8BEN, or
(E) Executed originals of any other form prescribed by applicable Laws as a basis for claiming
exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Administrative Agent to determine the withholding or
deduction required to be made.
(c) If a payment made to a Lender under any Loan Document would be subject
to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall
deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their
obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this
Section 2.8.5(c)
, “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(d) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lender.
2.8.6
Treatment of Certain Refunds.
Unless required by applicable Laws, at no time shall the Administrative Agent have
any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If the
46
Administrative Agent or any Lender determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under
this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses actually incurred by the Administrative Agent or such Lender, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund),
provided
that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.
2.9
Defaulting Lenders.
2.9.1
Adjustments
. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a
Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Laws:
(a)
Waivers and Amendments
. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or
consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and in
Section 13.4.1
.
(b)
Defaulting Lender Waterfall
. Any payment of principal, interest, fees or other amounts received by the
Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article XI or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to
Section 12.2
shall be applied at such time or times as may be reasonably determined by the Administrative Agent as follows:
first
, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
second
, as the
Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative
Agent;
third
, if so determined by the Administrative Agent and the Borrower, to be held in an interest bearing deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with
respect to Loans under this Agreement;
fourth
, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement;
fifth
, so long as no Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction
obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations
47
under this Agreement; and
sixth
, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that
if (x) such payment is a payment of the
principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in
Section 5.2
were satisfied or waived, such
payment shall be applied first to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in
accordance with the Commitments hereunder without giving effect to
Section 2.9.1(d)
. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender
pursuant to this
Section 2.9.1(b)
shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(c)
Certain Fees
.
(i) No Defaulting Lender shall be entitled to receive any Line Fee pursuant to
Section 2.4.2
for any period during
which that Lender is a Defaulting Lender (and Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) pursuant to
Section 2.4.2
for any period during which
that Lender is a Defaulting Lender and the Borrower shall not be required to pay the remaining amount of such fee that otherwise would have been required to have been paid to that Defaulting Lender.
2.9.2
Defaulting Lender Cure
. If Borrower and Administrative Agent agree in writing in their sole discretion that a
Defaulting Lender should no longer be deemed to be a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender
will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans to be held on a pro rata basis by the Lenders
in accordance with their Commitment Percentages, whereupon that Lender will cease to be a Defaulting Lender;
provided that
no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower
while that Lender was a Defaulting Lender; and
provided
,
further
,
that
, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
|
3.
|
BORROWING BASE PROPERTIES.
|
3.1
Loan Documents.
The
Loan shall be made, evidenced, administered and governed by all of the terms, conditions and provisions of the following loan documents (the “
Loan Documents
”), each as the same may be hereafter modified or amended, consisting of:
(i) this Loan Agreement; (ii) the Notes; (iii) the unconditional, continuing guaranty (individually and collectively the “Guaranty”) from each Guarantor, pursuant to which each Guarantor shall guaranty the prompt, punctual,
and faithful payment of the Loan and the performance of all
48
Borrower’s other Obligations to the Administrative Agent and each of the Lenders under the Loan Documents and Swap Contracts in substantially the form of Exhibit F-1 or F-2, as applicable,
which shall include each Borrowing Base Property Owner and each direct owner of the equity in a Borrowing Base Property Owner (other than the Borrower) that is a Wholly-Owned Subsidiary of the Borrower; and (iv) any other documents,
instruments, or agreements heretofore or hereafter executed to further evidence or secure the Loan and obligations arising under the Swap Contracts.
3.2
Removal of Individual Property as a Borrowing Base Property - Borrower.
From time to time during the term of
this Agreement following (i) Borrower’s written request (“
Release Request
”) and (ii) satisfaction of the Release Conditions, the Administrative Agent shall, in each case to the extent applicable, release the subject
Borrowing Base Property Owner (and indirect owners thereof, as applicable) from the Guaranty by executing a Release of Guaranty in the form of Exhibit B to the Guaranty, and thereafter, to the extent such Borrowing Base Property Owner does not own
any other Borrowing Base Property, such Borrowing Base Property Owner (and other Guarantors, as applicable) shall no longer be a Loan Party for the purposes of this Agreement;
provided
,
however
, any such release by the Administrative
Agent shall not be deemed to terminate or release such Borrowing Base Property Owner from any obligation or liability under any Loan Document which specifically by its terms survives the said release or the payment in full of the Obligations. The
“
Release Conditions
” are the following:
3.2.1
Borrowing Base Compliance.
After giving effect to
the release of the Borrowing Base Property, the Total Outstandings will be less than or equal to the Maximum Loan Amount.
3.2.2
Financial Covenant Compliance.
Upon release of the subject Borrowing Base Property, the Financial Covenants shall
remain satisfied (or be satisfied if the release cures a Default which resulted from the Financial Covenants not being satisfied).
3.2.3
No Default Upon Release.
No Default shall exist under this Agreement or the other Loan Documents at the time of
any such release, including, without limitation, under
Section 7.21
hereof, except for any Default which is cured or remedied by the removal of such Individual Property from being a Borrowing Base Property.
3.2.4
No Default Prior to Release.
No Event of Default shall exist under this Agreement or the other Loan Documents at
the time of the Release Request or at the time of any such release, including, without limitation, under Section 7.21 hereof, except for any Event of Default which is cured or remedied by the removal of such Individual Property from being a
Borrowing Base Property.
3.2.5 [Reserved].
3.2.6
Payment of Fees.
The Borrower shall pay or reimburse the Administrative Agent for all reasonable legal fees and
expenses and other reasonable costs and expenses incurred by Administrative Agent in connection with the release.
49
Any failure of any removal and release requested by the Borrower to meet all of
the Release Conditions shall be deemed a rejection of the proposed Release Request and, subject to the other terms and conditions hereof as to whether any Individual Property is a Borrowing Base Property, such Borrowing Base Property shall remain a
Borrowing Base Property hereunder.
3.3
Removal of Individual Property as a Borrowing Base Property - Administrative Agent.
3.3.1
Removal Criteria.
An Individual Property shall no longer be deemed to be a Borrowing Base Property upon
the determination by the Administrative Agent of the occurrence of any of the following:
(a) A Major Event of Loss occurs
as to a Borrowing Base Property;
(b) A Borrowing Base Property as to which an Event of Loss occurs is not, or ceases to
be, a Restoration Property, or upon completion of the Repair Work, will not meet all of the Borrowing Base Property Requirements; or
(c) The Required Lenders have instructed the Administrative Agent to remove a Borrowing Base Property if a tenant or tenants
which have Leases in such Borrowing Base Property are subject to bankruptcy or insolvency proceedings and are not paying rent as required under such Leases or have filed a motion to reject such Lease, or have not assumed such Lease within sixty
(60) days (or such longer period granted by the applicable bankruptcy court, not to exceed one hundred eighty (180) days) after such tenant’s bankruptcy filing.
3.3.2 [Reserved].
3.3.3
Release by Administrative Agent.
With respect to any Individual Property determined by the Administrative Agent to
no longer be deemed a Borrowing Base Property in accordance with this
Section 3.3
, if requested by the Borrower and the Release Conditions are satisfied with respect thereto, the Administrative Agent shall, in each case to the extent
applicable, release the subject Borrowing Base Property Owner (and indirect owners thereof, as applicable) from the Guaranty by executing a Release of Guaranty in the form of Exhibit B to the Guaranty, and thereafter, to the extent such Borrowing
Base Property Owner does not own any other Borrowing Base Property, such Borrowing Base Property Owner (and other Guarantors, as applicable) shall no longer be a Loan Party for the purposes of this Agreement;
provided
,
however
, any
such release by the Administrative Agent shall not be deemed to terminate or release such Borrowing Base Property Owner from any obligation or liability under any Loan Document which specifically by its terms survives the said release or the payment
in full of the Obligations.
3.4
Additional Borrowing Base Property
.
From time to time during the term of this
Agreement following the Borrower’s written request (“
Additional Borrowing Base Request
”), the Administrative Agent shall accept one or more Individual Properties as Borrowing Base Properties upon the satisfaction of the
following conditions, in a manner reasonably acceptable to the Administrative Agent:
(a) If sought by the Borrower, the
Borrower shall have obtained Preliminary Approval for the addition of such Individual Property.
50
(b) The Borrower (or applicable Loan Party) shall have satisfied all of the
Borrowing Base Property Requirements as to such Individual Property.
(c) The Borrower and the applicable Loan Parties
shall have executed and delivered the documents set forth in
Section 3.1
, including a Counterpart to Guaranty in substantially the form of Exhibit A to the Guaranty.
(d) The Borrower shall pay or reimburse the Administrative Agent for all reasonable legal fees and expenses and other costs and
expenses incurred by Administrative Agent in connection with the additional Borrowing Base Property.
(e) The Borrower, the
subject Borrowing Base Property Owner, and the subject Individual Property shall have satisfied all applicable conditions precedent set forth in
Article 5
prior to the inclusion of the Individual Property as a Borrowing Base Property.
The Administrative Agent shall give the Borrower prompt written notice of its determination with respect to the admission or
rejection of any Individual Property as a Borrowing Base Property. To the extent that an Individual Property does not meet the requirements set forth above, the Borrower may nevertheless request that such Individual Property be included as a
Borrowing Base Property and the Required Lenders may, in their sole and absolute discretion, agree to the acceptance of such Individual Property as an additional Borrowing Base Property.
|
4.
|
CONTINUING AUTHORITY OF AUTHORIZED OFFICERS.
|
The Administrative Agent and each
of the Lenders are authorized to rely upon the continuing authority of the Authorized Officers with respect to all matters pertaining to the Loan and the Loan Documents including, but not limited to, the selection of interest rates, the submission
of requests for Loan Advances and certificates with regard thereto. Such authorization may be changed only upon written notice to Administrative Agent accompanied by evidence, reasonably satisfactory to Administrative Agent, of the authority of such
Authorized Officer giving such notice and such notice shall be effective not sooner than five (5) Business Days following receipt thereof by Administrative Agent. The Authorized Officers as of the Closing Date are as set forth on
Schedule
4
.
5.1 Closing Loan and Funding Initial Loan
Advance.
It shall be a condition precedent of Lenders’ obligation to close the Loan and to fund the Tranche A Term Facility or the Tranche B Term Facility that each of the following conditions precedent be satisfied in full, unless
specifically waived in writing by all of the Lenders at or prior to the date of this Agreement (the “
Closing Date
”):
51
5.1.1
Satisfactory Loan Documents.
On the Closing Date, each of the Loan
Documents shall be satisfactory in form, content and manner of execution and delivery to the Administrative Agent and the Administrative Agent’s counsel, and all Loan Documents shall be in full force and effect.
5.1.2
Financial Information; No Material Change.
(a) No change shall have occurred in the financial condition, business, affairs, operations or control of Borrower and/or the
Loan Parties, since the date of their respective financial statements most recently delivered to Administrative Agent or any of the Lenders, which change has had or could reasonably be expected to have a Material Adverse Effect; and Borrower and the
other Loan Parties shall have furnished Administrative Agent such other financial information, and certifications as reasonably requested by the Administrative Agent.
(b) The Borrower shall have provided to the Administrative Agent such certificates and other evidence as the Administrative
Agent may reasonably require to evidence that the Borrower, CRT and each of the Borrowing Base Property Owners (both before and after giving effect to the Loan) is solvent, has assets having a fair value in excess of the amount required to pay such
Person’s probable liabilities and existing Debts as such become absolute and mature, and has adequate capital for the conduct of such Person’s business and the ability to pay such Person’s Debts from time to time incurred in
connection therewith as such Debts mature, including the Closing Compliance Certificate (the “
Closing Compliance Certificate
”) set forth as
Exhibit E
hereto or in such other form reasonably acceptable to the Administrative
Agent.
5.1.3
Representations and Warranties Accurate.
All representations and warranties made by or on behalf of
the Borrower and the other Loan Parties, or any of them, to the Administrative Agent or any of the Lenders shall be true, accurate and complete in all material respects and shall not omit any material fact necessary to make the same not materially
misleading.
5.1.4
Lien Searches
. On or prior to the Closing Date, the Administrative Agent shall have received the
results of a UCC, tax lien and judgment search as may be reasonably requested by the Administrative Agent with respect to the Borrower and any other Loan Parties, and the results of such search shall indicate there are no judgments which the
Administrative Agent shall reasonably determine in good faith could reasonably be expected to have a Material Adverse Effect or Liens not permitted under the Loan Documents or to be satisfied with the proceeds of the initial Loan Advance or
otherwise permitted by the Administrative Agent.
52
5.1.5
Litigation
. On the Closing Date, there shall not be any actions,
suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority by any entity (private or governmental) pending or, to the best of the Borrower’s knowledge, threatened with
respect to the Loan, the transactions contemplated in the Loan Documents, or the Borrower, any other Loan Party, or any other Borrower Subsidiary, which are not fully covered (subject to deductibles) by an insurance policy issued by a reputable and
financially viable insurance company, or, to the extent not so covered, which the Administrative Agent shall reasonably determine in good faith could reasonably be expected to have a Material Adverse Effect.
5.1.6
Formation Documents and Entity Agreements
. On the Closing Date, the Administrative Agent shall have received a
certificate of an Authorized Officer of each Loan Party (or the manager or general partner of such Loan Party, as applicable) certifying (a) as to resolutions of such Loan Party authorizing and approving the transactions contemplated by the
Loan Documents, and the execution and delivery thereof by such Loan Party in respect of the documents to which it is a party on its own behalf, or as a general partner or manager of such Loan Party, in respect of any of the Loan Documents,
(b) as to signatures and incumbency of all Authorized Officers of such Loan Party (or the manager or general partner of such Loan Party, as applicable) executing documentation on behalf of such entity or on behalf of such Loan Party, in
connection with the transactions contemplated by the Loan Documents, (c) that the Formation Documents of such Loan Party delivered on the Closing Date (with respect to the Borrowing Base Properties other than the Existing Borrowing Base
Properties) or in connection with the Revolving/Term Facility (with respect to the Existing Borrowing Base Properties) have been duly executed, delivered and filed (to the extent required by applicable Laws) and are or remain, as applicable, in full
force and effect and unmodified except as stated therein as of the date of such certificate (and annexing copies thereof with respect to the Formation Documents delivered on the Closing Date) and (d) the good standing certificates of such Loan
Party for (i) its state of formation and (ii) such other good standing certificates where the conduct of such Loan Party’s business and ownership of its assets requires such qualification unless the failure to be so qualified could
not reasonably be expected to have a Material Adverse Effect on such Loan Party.
5.1.7
Compliance With Laws.
The
Administrative Agent shall have received and approved evidence that there are no Laws which prohibit or adversely limit the capacity or authority of the Borrower or any Loan Party to enter into the Loan Documents and perform the obligations of such
Person with respect thereto.
5.1.8
Compliance With Financial Covenants.
The Lenders shall have received from the
Administrative Agent the Closing Compliance Certificate or other evidence reflecting the Borrower’s compliance with the Financial Covenants and the terms and conditions hereof after giving effect to this Agreement and the other Loan Documents.
5.1.9
Borrowing Base Property Due Diligence.
The Administrative Agent shall have received and completed a review of
such due diligence as the Administrative Agent may reasonably require with respect to any Borrowing Base Property, consistent
53
with customary commercial lending practices for unsecured lines of credit involving properties of a similar nature including, without limitation, satisfaction of the Borrowing Base Property
Requirements.
5.1.10
Condition of Property.
There shall have been no material unrepaired or unrestored damage or
destruction by fire or otherwise to any of the real or tangible personal property comprising or intended to comprise the Borrowing Base Properties.
5.1.11
Third Party Consents and Agreements.
The Administrative Agent shall have received such third party consents and
agreements, if any, as the Administrative Agent may reasonably require with respect to the entering into the Loan Documents and the performance of the obligations thereunder.
5.1.12
Legal and other Opinions.
The Administrative Agent shall have received and approved legal opinion letters from
counsel representing the Borrower and the other Loan Parties which meet Administrative Agent’s legal opinion requirements and covering such matters incident to the transactions contemplated herein as the Administrative Agent may request.
5.1.13
Repayment of Debt.
The existing loan evidenced by that certain Amended and Restated Credit Agreement dated
November 7, 2011 among CF Pottsgrove Associates, L.P., the lenders party thereto and Manufacturers and Traders Trust Company, as Administrative Agent, shall have been, or shall simultaneously be with the advance of the first Loan Advances
hereunder, be repaid in full.
5.1.14
No Default.
There shall not be any Default under any of the Loan Documents.
Notwithstanding anything to the contrary contained in this Agreement, with respect to any Existing Borrowing Base
Property, the Administrative Agent and the Lenders hereby agree that the only closing requirements with respect to such Existing Borrowing Base Properties shall be receipt of (a) satisfactory legal opinion letters from counsel representing the
Borrower and the other Loan Parties with respect to such Existing Borrowing Base Properties, (b) the other documentation set forth on the closing agenda provided by the Administrative Agent, including, without limitation, the Guaranty from each
Guarantor, and (c) such other documentation, to the extent not previously delivered and in the possession of the Administrative Agent, required under the definition of Borrowing Base Property Requirements; it being understood that upon
execution of this Agreement, each Lender agrees that the Borrowing Base Property Requirements for each Existing Borrowing Base Property have been satisfied.
5.2 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Credit Extension (other than a Loan Notice
requesting only a conversion of Loans to the other Type, or a continuation of LIBO Rate Advances) is subject to the following conditions precedent:
5.2.1
Financial Covenant Compliance.
The Borrower shall be in compliance, on a pro forma basis after giving effect to
such Credit Extension, with the Financial Covenants, as satisfied by the Closing Compliance Certificate, or once delivered, the most recent Compliance Certificate delivered by the Borrower.
54
5.2.2
No Default
. No Default or Event of Default shall exist, or would
result from such proposed Credit Extension or from the application of the proceeds thereof
5.2.3
Loan Notice.
The
Administrative Agent shall have received a Loan Notice in accordance with the requirements hereof.
Each request for a Credit Extension
(other than a Loan Notice requesting only a conversion of Loans to the other Type or a continuation of LIBO Rate Advances) submitted by the Borrower shall be deemed to be a certification that the conditions specified in
Sections 5.2.1
,
5.2.2
and
5.2.3
have been satisfied on and as of the date of the applicable Credit Extension.
|
6.
|
REPRESENTATIONS AND WARRANTIES.
|
To induce the Lenders to enter into this
Agreement and to make each Loan Advance, and to otherwise complete all of the transactions contemplated hereby, the Borrower represents and warrants to the Administrative Agent and each Lender that:
6.1
Formation.
Each Loan Party has been duly formed and is validly existing and in good standing as a corporation,
partnership or limited liability company, as the case may be, under the laws of the State of its formation. Each Loan Party has the requisite corporate, partnership or limited liability company power and authority, as applicable, to own its assets
and conduct its businesses as currently conducted and owned, and to enter into and perform its obligations under each Loan Document to which it is a party. Each Loan Party is in good standing and authorized to do business in each jurisdiction where
the ownership of its assets and/or the conduct of its business requires such qualification except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect.
6.2
Proceedings; Enforceability.
Each Loan Party has taken all requisite corporate, partnership or limited liability
company action, as applicable, to authorize the execution, delivery and performance by such Loan Party of the Loan Documents to which it is a party. Each Loan Document which is required to be executed and delivered on or prior to the date on which
this representation and warranty is being made has been duly authorized, executed and delivered and constitutes the legal, valid and binding obligation of each Loan Party thereto, enforceable against each such Loan Party in accordance with its
respective terms except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
6.3
Conflicts.
Neither the execution, delivery and performance of the Loan Documents by the Loan Parties nor compliance
by any Loan Party with the terms and provisions thereof, (a) will contravene any provision of any Law or any order, writ, injunction or decree of any court or Governmental Authority having jurisdiction over the Borrower, the Property or any
Loan Party, (b) will conflict with or result in any breach of any of the terms, covenants, conditions of, or constitute a default under, or result in the creation or imposition (or the obligation to create or impose) of any Lien upon any of the
property or assets of any Loan Party pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement or loan
55
agreement or any other agreement, contract or instrument to which any Loan Party is a party or by which it or any of its properties or assets is bound or to which it may be subject, or
(c) will violate any provision of any Formation Document of any Loan Party.
6.4
Ownership and Taxpayer Identification
Numbers.
All of the partners, owners, stockholders, and members, respectively and as may be applicable, of each Loan Party (other than the Borrower and CRT) are listed in
Schedule 6.4
(as such may be updated from time to time). Set
forth on
Schedule 6.4
(as such may be updated from time to time) is the exact correct and legal name, tax identification number(s) and state of incorporation or organization of the Borrower, CRT and each other Loan Party and whether such Loan
Party owns a Borrowing Base Property. Each Borrowing Base Property Owner is a Wholly-Owned Subsidiary of the Borrower.
6.5
Litigation.
There are no actions, suits or proceedings at law or in equity or by or before any Governmental Authority or other agency or regulatory authority by any entity (private or governmental) pending or, to the best of each Loan
Party’s knowledge, threatened with respect to the Loan, the transactions contemplated in the Loan Documents, any Loan Party, or any Borrower Subsidiary, which are not fully covered (subject to deductibles) by an insurance policy issued by a
reputable and financially viable insurance company, or, to the extent not so covered, could (a) materially adversely affect a Borrowing Base Property or (b) have or reasonably be expected to have a Material Adverse Effect.
6.6
Information.
All factual information furnished by or on behalf of the Borrower or any Loan Party to the
Administrative Agent and/or any of the Lenders (including, without limitation, all information contained in the Loan Documents) for purposes of or in connection with this Agreement, the other Loan Documents or any transaction contemplated herein or
therein is, and all other such factual information hereafter furnished by or on behalf of the Borrower or any Loan Party to the Administrative Agent and/or any of the Lenders will be, true and accurate in all material respects on the date as of
which such information is dated or certified and not incomplete by omitting to state any fact necessary to make such information not misleading in any material respect at such time in light of the circumstances under which such information was
provided. There is no material fact presently known to the Borrower which has not been disclosed to the Administrative Agent, and thereupon disclosed by the Administrative Agent to the Lenders, which could reasonably be expected to have a Material
Adverse Effect.
6.7
Taxes.
All Loan Parties have made all required tax filings and are not delinquent in the payment
of any federal, state and local taxes, assessments, impositions or other governmental charges applicable to them and/or their respective assets, except to the extent same are being contested in a manner which complies with the requirements of
Section 8.2.4
.
6.8
Financial Information.
The Consolidated financial statements of CRT and the
consolidating financial statements of the Borrower and each Borrower Subsidiary delivered to the Administrative Agent (and which statements the Administrative Agent has delivered to the Lenders) present fairly the (a) financial condition of CRT
and its Subsidiaries and the Borrower and the Borrower Subsidiaries, as applicable, as of the dates of such statements and (b) results of operations for the periods covered thereby. Since the dates of the relevant financial statements, no
change has occurred which could reasonably be expected to have a Material Adverse Effect.
56
All financial statements of CRT, the Borrower, the Borrower Subsidiaries, or any other Loan Party hereafter furnished to the Administrative Agent or any of the Lenders shall be true, accurate and
complete in all material respects and shall fairly present the financial condition of CRT, the Borrower, the Borrower Subsidiaries and/or respective Loan Party, as applicable, as of the date thereof.
6.9
Control Provisions.
The Borrower controls, directly or indirectly, and without the requirement for consent of any
other Person (other than CRT), the management of each Borrowing Base Property Owner, subject to the rights of those minority or other equity interest holders as the Administrative Agent may approve.
6.10
Formation Documents.
Subject to the last unnumbered paragraph of Article 5 hereof, the Borrower has delivered or
caused to be delivered to the Administrative Agent true and complete copies of all Formation Documents of the Loan Parties, and all amendments thereto.
6.11
Bankruptcy Filings.
No Loan Party is contemplating either a filing of a petition under any Debtor Relief Laws or the
liquidation of all or a major portion of its assets or property, and the Borrower has no knowledge of any Person contemplating the filing of any such petition against any Loan Party.
6.12
Investment Company.
No Loan Party is an “investment company” or a company “controlled” by an
“investment company,” within the meaning of the Investment Company Act of 1940, as amended.
6.13
[Reserved].
6.14
Borrowing Base Properties.
6.14.1
Licenses and Permits.
The Borrowing Base Property Owners possess such Licenses and Permits issued by the
appropriate federal, state, or local regulatory agencies or bodies necessary to own and operate each Borrowing Base Property, except where the failure to possess any such License or Permit could not reasonably be expected to have a Material Adverse
Effect. The Borrowing Base Property Owners are in material compliance with the terms and conditions of all such Licenses and Permits, except where the failure so to comply could not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect. All of the Licenses and Permits are valid and in full force and effect, except where the invalidity of such Licenses and Permits or the failure of such Licenses and Permits to be in full force and effect could not reasonably
be expected to have a Material Adverse Effect. Neither the Borrower nor any of the Borrowing Base Property Owners has received any written notice of proceedings relating to the revocation or modification of any such Licenses and Permits which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to result in a Material Adverse Effect.
6.14.2
Ownership.
(a) The Borrowing Base Property Owners have either (i) fee simple title to the Borrowing
Base Properties or (ii) a leasehold estate interest in the Borrowing Base Properties, as set forth in
Schedule 6.14.2
(as such may be updated
57
from time to time), which such schedule (as it may be updated from time to time) also sets forth the current Adjusted Capitalized Value of each such Borrowing Base Property; (b) the interest
of the Borrowing Base Property Owners in the Borrowing Base Properties are not subject to any Liens other than Permitted Liens, (c) neither the Borrower, CRT, nor any of the Borrowing Base Property Owners has received written notice of the
assertion of any material valid claim by anyone adverse to any Loan Party’s ownership, or leasehold rights in and to any Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with
Section 6.25
) that could reasonably be expected to have a Material Adverse Effect and (d) no Person has an option or right of first refusal to purchase all or part of any Borrowing Base Property or any interest therein which has not
been waived (except as disclosed in
Schedule 6.14.
2 or in any update from time to time in accordance with
Section 6.25
).
6.14.3
Environmental Matters.
Except to the extent (i) the failure of the following to be true could not reasonably
be expected to have a Material Adverse Effect or (ii) disclosed in writing to the Lenders prior to the Individual Property becoming a Borrowing Base Property either pursuant to an Environmental Report or in the S-11 registration statement filed
by the Borrower on October 23, 2003 (it being understood that any such disclosure is limited to the facts known at the time such Individual Property became a Borrowing Base Property and does not include any new information or any change in
facts regarding such disclosure that occurs at a later date), (a) each Borrowing Base Property is free of any Hazardous Materials in violation of any Environmental Laws applicable to such property; (b) none of the Borrowing Base Property
Owners nor any Loan Party has received any written notice of a claim under or pursuant to any Environmental Legal Requirements applicable to a Borrowing Base Property or under common law pertaining to Hazardous Materials on or originating from any
Borrowing Base Property (except as may be disclosed in any update from time to time in accordance with
Section 6.25
) and (c) none of the Borrowing Base Property Owners or any Loan Party has received any written notice from any
Governmental Authority claiming any material violation of any Environmental Legal Requirements that is uncured or unremediated (except as may be disclosed in any update from time to time in accordance with
Section 6.25
) .
6.14.4
Leases.
Except to the extent the failure of the following to be true would not result in a Material Adverse
Effect, (a) with respect to the Borrowing Base Properties, each Major Lease is in full force and effect (except as may be disclosed in any update from time to time in accordance with
Section 6.25
), (b) to the Borrower’s
knowledge, none of the Borrowing Base Property Owners is in default after notice and the expiration of all applicable cure periods in the performance of any material obligation under any Major Lease and the Borrower has no knowledge of any
circumstances which, with the passage of time or the giving of notice, or both, would constitute an event of default by any party under any of the Major Leases (except as may be disclosed in any update from time to time in accordance with
Section 6.25
), (c) to the Borrower’s knowledge, no tenant is in default after notice and the expiration of all applicable cure periods in the performance of any material obligation under any Major Lease (except as may be
disclosed in any update from time to time in accordance with
Section 6.25
), (d) to the Borrower’s knowledge, there are no actions, voluntary or involuntary, pending
58
against any tenant under a Major Lease under any Debtor Relief Laws (except as may be disclosed in any update from time to time in accordance with
Section 6.25
), and (e) none of
the Major Leases and none of the rents or other amounts payable thereunder has been assigned, pledged or encumbered by any of the Borrowing Base Property Owners or any other Person, except with respect to the Lien in favor of the Administrative
Agent on behalf of the Lenders securing the repayment of Obligations.
6.14.5
Ground Lease
. Except to the extent the
failure of the following to be true would not result in a Material Adverse Effect, (a) each Ground Lease with respect to a Borrowing Base Property is valid, binding and in full force and effect as against the applicable Borrowing Base Property
Owners and, to the Borrower’s knowledge, the other party thereto, (b) none of Borrowing Base Property Owner’s interest in the Ground Leases is subject to any pledge, lien, assignment, license or other agreement granting to any third
party any interest therein, (c) no payments under any Ground Lease with respect to a Borrowing Base Property are delinquent, and to the knowledge of the Borrower, there does not exist under any of the Ground Leases any default after notice and
expiration of all applicable cure periods in the performance of any material obligation under a Ground Lease, and (d) the identity of each ground lessor under a Ground Lease with respect to a Borrowing Base Property and whether each such ground
lessor is an Affiliate of any Loan Party are set forth in Schedule 6.14.5 (as such may be updated from time to time).
6.14.6
Casualty/Condemnation
. To each Loan Party’s Knowledge, as of the Closing Date no Borrowing Base Property is
the subject of any pending material condemnation proceeding or has suffered any material loss or casualty which has not been restored.
6.14.7
Property Condition
. To each Loan Party’s Knowledge, as of the Closing Date each Borrowing Base Property is
in good condition and repair, with no material deferred maintenance currently pending with respect to any Borrowing Base Property.
6.15
Margin Regulations; Use of Proceeds.
The Loan Parties are not engaged and will not engage, principally or as one of
its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System of the United States), or extending credit for the purpose of
purchasing or carrying margin stock. The proceeds of the Loan shall be used solely and exclusively as provided in
Section 8.13
. No portion of the proceeds of the Loan shall be used directly or indirectly, and whether immediately,
incidentally or ultimately (a) to purchase or carry any margin stock or to extend credit to others for the purpose thereof or to repay or refund indebtedness previously incurred for such purpose, or (b) for any purpose which would violate
or in inconsistent with the provisions of regulations of the Board of Governors of the Federal Reserve System including, without limitation, Regulations T, U and X thereof.
6.16
Insurance.
The Borrowing Base Properties are insured by insurers of recognized financial responsibility against such
losses and risks in compliance with the requirements of
Section 7.5.1
below.
59
6.17
Deferred Compensation and ERISA.
Neither the Borrower nor any other
Loan Party or any ERISA Affiliate, has any employee pension benefit plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA nor maintains any employee welfare benefit plan (as defined in Section 3(l) of ERISA) that
primarily provide for health and welfare benefits to retired employees or other former employees (other than as required by Section 601 of ERISA).
6.18
[Reserved].
6.19
No Default.
There is no Default on the part of the Borrower or any of the other Loan Parties under this Agreement or
any of the other Loan Documents and no event has occurred and is continuing which could constitute a Default under any Loan Document.
6.20
Governmental Authorizations; Other Consents.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person that has not been obtained or delivered is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this
Agreement or any other Loan Document.
6.21
Qualification as a REIT.
CRT qualified as a REIT under the provisions of
the Code, as applicable, for its fiscal year ended December 31, 2010, and has remained qualified from December 31, 2010 through the date hereof. All appropriate federal income tax returns for the fiscal years through December 31, 2011
have been filed by CRT with the IRS and no previously filed return has been examined and reported on by the IRS. CRT has not incurred any liability for excise taxes pursuant to Section 4981 of the Code. CRT is organized in conformity with the
requirements for qualification as a REIT pursuant to Sections 856 through 860 of the Code, and CRT’s proposed method of operation consistent with CRT’s business and the business activities contemplated by this Agreement will enable it to
meet the requirements for qualification and taxation as a REIT under the Code.
6.22
Compliance with Laws.
Each Loan
Party is in compliance in all material respects with the requirements of all Laws applicable to it or to its properties, except in such instances in which (a) such requirement of Law is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
6.23
Property Matters.
6.23.1
Major Leases.
Set forth on Schedule 6.23.1 is a list of all Major Lease locations and the tenants party to Leases
at such Major Lease locations (as updated from time to time, provided however, that notwithstanding Section 6.25 hereof Schedule 6.23.1 shall not be required to be updated more frequently than once per quarter). In the event that Borrower
requests a Loan Advance more frequently than once per quarter, the accuracy of the representations made in this Section 6.23.1 shall not be a condition to funding such Loan Advance.
6.23.2
Borrowing Base Properties
. Set forth on Schedule 6.14.2 is a list of each Borrowing Base Property with
detail indicating the owner of each Borrowing Base Property and the location of each Borrowing Base Property.
60
6.24
Solvency.
After giving effect to the transactions contemplated hereby,
(a) each of the Loan Parties is solvent and is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, and (b) the fair saleable value of each Loan
Party’s assets, measured on a going concern basis, exceeds all probable liabilities, including those to be incurred pursuant to this Agreement. After giving effect to the transactions contemplated hereby, none of the Loan Parties (i) has
unreasonably small capital in relation to the business in which it is or proposes to be engaged or (ii) has incurred, or believes that it will incur debts beyond its ability to pay such debts as they become due;
provided
that nothing
contained in subclause (i) shall require any equity holder to make any capital contribution to comply with such subclause (i). In executing the Loan Documents and consummating the transactions contemplated hereby, none of the Loan Parties
intends to hinder, delay or defraud either present or future creditors or other Persons to which one or more of the Loan Parties is or will become indebted.
6.25
Regarding Representations and Warranties
. Each request by any Borrower for a Loan Advance: (i) shall constitute an
affirmation by Borrower that the foregoing representations and warranties remain true and correct as of the date of such request (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they
shall be true and correct in all material respects as of such earlier date, and except that for purposes of this
Section 6.25
, the representations and warranties contained in
Section 6.8
shall be deemed to refer to the most
recent statements furnished pursuant to
Section 7.2.1
and
Section 7.2.2
; and except as to the representations and warranties in
Sections 6.4, 6.7, 6.9
, and
6.14
which may be modified only to reflect events
occurring after the date hereof as specifically disclosed in writing to Administrative Agent prior to or simultaneously with such written request) and, unless Administrative Agent is notified to the contrary prior to the disbursement of the
requested Loan Advance, will be so on the date of such Loan Advance, and (ii) shall constitute the representation and warranty of Borrower to Administrative Agent and each of the Lenders that the information set forth in each such request is
true and correct in all material respects and omits no material fact necessary to make the same not misleading,
provided
that to the extent any representation or warranty made by the Borrower in this Agreement or any other Loan Document shall
be incorrect or misleading in any material respect with respect to one or more Borrowing Base Properties such that the affirmations, representations and warranties required by this
Section 6.25
cannot be made, the Borrower may remove a
Borrowing Base Property pursuant to the terms of
Section 3.2
(with a resulting decrease in the Borrowing Base Value) so that the affirmations, representations and warranties required by this
Section 6.25
may be made. All
representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by each Loan Party shall be deemed to have been relied upon by the Administrative Agent and each of the Lenders notwithstanding any
investigation heretofore or hereafter made by the Administrative Agent and/or any of the Lenders or on its behalf.
61
|
7.
|
AFFIRMATIVE COVENANTS.
|
So long as any Lender shall have any Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall, and shall cause, with respect to
Sections 7.3
through
7.12
, inclusive and
Sections 7.26
and
7.27
, each Loan Party
to:
7.1 Notices.
Within five (5) business days after obtaining actual knowledge thereof, notify the Administrative
Agent in writing (and the Administrative Agent shall thereafter promptly notify the Lenders) of the following: (a) occurrence of any act, event or condition which constitutes a Default or Event of Default under any of the Loan Documents; and
(b) any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect. Any notification delivered pursuant to clause (a) of this
Section 7.1
shall include a written statement of any remedial or
curative actions, if applicable, which the Borrower proposes to undertake and/or to cause any of other Loan Parties to cure or remedy such Default or Event of Default.
7.2
Financial Statements; Reports; Officer’s Certificates.
Furnish or cause to be furnished to the
Administrative Agent (and the Administrative Agent shall thereafter promptly furnish copies of same to the Lenders) from time to time, the following financial statements, reports, certificates, and other information, all in form and manner of
presentation reasonably acceptable to the Administrative Agent:
7.2.1
Annual Statements.
As soon as available and
in any event no later than the earlier of (a) to the extent applicable, ten (10) days following the date CRT is required by the SEC to deliver its Form 10-K for each Fiscal Year and (b) ninety (90) days after the close of each
Fiscal Year, (i) the Consolidated statements of financial condition of CRT, as at the end of such Fiscal Year and the related Consolidated statement of income and retained earnings and statement of cash flows for such Fiscal Year, in each case,
commencing with the Fiscal Year ending December 31, 2014, setting forth comparative figures for the preceding fiscal year and certified by the Chief Financial Officer or Chief Accounting Officer of Borrower and by Ernst & Young LLP or
other independent registered public accounting firm of recognized national standing reasonably acceptable to the Administrative Agent, in an unqualified opinion which report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, (ii) consolidating income statements for the Borrower and each
Borrower Subsidiary; such financial statements to include and to be supplemented by such detail and supporting data and schedules as the Administrative Agent may from time to time reasonably determine and (iii) upon the request of the
Administrative Agent, a one (1) year Cash Flow Projection.
7.2.2
Periodic Statements.
As soon as available and
in any event no later than the earlier of (a) to the extent applicable, ten (10) days following the date CRT is required by the SEC to deliver its Form 10-Q for each fiscal quarter, and (b) forty-five (45) days after the close of
each fiscal quarter (except for the quarter ending on December 31), (i) the Consolidated statement of financial condition of CRT, as at the end of such quarterly period, (ii) the related Consolidated statement of income and retained
earnings (for the current quarter and on a year to date basis), and (iii) the Consolidated statement of cash flows (on a year to date basis), in each case commencing with the fiscal quarter ending March 31, 2014, setting forth comparative
figures for the related periods in the prior Fiscal Year, internally prepared in accordance with GAAP, consistently applied, subject to normal year-end audit adjustments, all in form and manner of presentation reasonably acceptable to the
Administrative Agent, such financial statements
62
to be certified by the Chief Financial Officer or Chief Accounting Officer of Borrower and to include and to be supplemented by such detail and supporting data and schedules as the Administrative
Agent may from time to time reasonably determine, together with consolidating income statements for the Borrower and each Borrower Subsidiary.
7.2.3
Borrowing Base Property Reports.
Quarterly and annually, upon delivery of each of the financial statements
required pursuant to
Sections 7.2.1
and
7.2.2
, above, the following financial statements for each of the Borrowing Base Property Owners internally prepared by the Borrower and certified by the Borrower to be true, accurate and complete
in all material respects: (a) to the extent not included in the deliveries under
Sections 7.2.1
or
7.2.2
, an operating statement showing all calculation necessary to determine Adjusted Net Operating Income on a property by
property basis, including, without limitation, the results of operation for the current quarter and on a year-to-date basis for the period just ended and, annually, an operating statement for the year just ended; and (b) in the form customarily
used by the Borrower, a detailed, current rent roll of the subject Borrowing Base Property, containing such details as the Administrative Agent may reasonably request.
7.2.4
SEC Reports.
Within ten (10) days after being received, copies of all correspondence from the SEC, other than
routine non-substantive general communications from the SEC.
7.2.5
Compliance Certificates.
Quarterly and annually,
upon delivery of each of the financial statements required pursuant to
Sections 7.2.1
and
7.2.2
above, (a) a Compliance Certificate in form of
Exhibit C
, annexed hereto, together with an Officer’s Certificate from the
Chief Financial Officer or Chief Accounting Officer of Borrower providing and otherwise certifying (i) the compliance or non-compliance by the Borrower with the Financial Covenants, including such supporting detail as is reasonably deemed
necessary by the Administrative Agent to verify the calculations incorporated therein, (ii) a report containing, to the extent not included in the deliveries under
Sections 7.2.1
,
7.2.2
, or
7.2.3
for all Individual
Properties, a summary listing of all Net Operating Income, revenues, rent roll, mortgage Debt, if any, the Borrower’s ownership interest therein, and, in addition, for each Individual Property acquired during the quarter just ended, the cost
basis and the amount and terms of any assumed Debt, (iii) a certification that the financial statements fairly present in all material respects the Consolidated financial condition of CRT and that no Default or Event of Default has occurred and
is continuing, or if it is, a statement as to the nature thereof; (iv) a listing of all filings by the Borrower or CRT with the SEC, including, without limitation, full copies of CRT’s 10-Q and 10-K filings; (v) if requested by the
Administrative Agent and to the extent not previously provided, a list of any Major Leases entered into during the most recent fiscal quarter and any existing Leases that became Major Leases during the most recent fiscal quarter; and (vi) any
material change in accounting policies required by GAAP or financial reporting practices by any Loan Party or their Subsidiaries.
7.2.6
Data Requested.
Within a reasonable period of time and from time to time, such other financial data or information
as the Administrative Agent may reasonably request with respect to the Borrowing Base Properties, the Borrower, and/or
63
the other Loan Parties including, but not limited to, rent rolls, aged receivables, aged payables, leases, budgets, forecasts, reserves, cash flow projections, deposit accounts, mortgage
information, physical condition of the Borrowing Base Properties and pending lease proposals.
7.2.7
Tax Returns.
Upon the Administrative Agent’s request, copies of all federal and state tax returns of the Borrower and the other Loan Parties.
7.2.8
[Reserved.]
7.2.9
[Reserved.]
7.2.10
Entity Notices.
Concurrently with the issuance thereof, copies of all material written notices (excluding routine
correspondence) given to the partners, owners, stockholders, and/or members, respectively, of the Borrower.
7.2.11
Property Acquisition or Sale.
Within five (5) Business Days of receipt thereof, copies of all notices in any way relating to a proposed sale or acquisition of any Individual Property which the Borrower or any Borrower Subsidiary intends
to consummate.
7.2.12
Property Finance.
Within five (5) Business Days of receipt thereof, copies of all
notices in any way relating to (a) a proposed finance or refinance of any Individual Property which the Borrower or any Borrower Subsidiary intends to consummate, (b) the occurrence of any monetary or material non-monetary default or
monetary or material non-monetary event of default under any Debt which is recourse to the Borrower, or any other default or event of default under any Debt which is recourse to the Borrower, the occurrence of which could reasonably be expected to
have a Material Adverse Effect, or (c) the occurrence of any monetary or material non-monetary default or monetary or material non-monetary event of default under any Debt in excess of $40,000,000 which is secured by an Individual Property, or
any other default or event of default under any Debt in excess of $40,000,000 which is secured by an Individual Property, the occurrence of which could reasonably be expected to have a Material Adverse Effect.
7.2.13
Notice of Litigation.
Within ten (10) Business Days after an Authorized Officer obtains knowledge thereof,
written notice of any pending or, to the best of such Person’s knowledge, threatened action, suit or proceeding at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority by any entity (private
or governmental) relating in any way to the Loan, the transactions contemplated in the Loan Documents (including, without limitation, with regard to all Distributions), or the transactions contemplated in any documentation executed in connection
therewith, or the Borrower, any other Loan Party, any other Borrower Subsidiary or any Borrowing Base Property, which is not fully covered (subject to deductibles) by an insurance policy issued by a reputable and financially viable insurance
company, or, to the extent not so covered, which could reasonably be expected to have a Material Adverse Effect or a material adverse effect on a Borrowing Base Property.
64
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “
Borrower Materials
”) by posting the Borrower Materials on IntraLinks, Syndtaks or
another similar electronic system (the “
Platform
”) and (b) certain of the Lenders (each, a “
Public Lender
”) may have personnel who do not wish to receive material non-public information with respect to the
Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that so long as the
Borrower or CRT is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made
available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its
securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in
Section 15.20
); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat and shall
treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform that is not designated “Public Side Information.” Notwithstanding the foregoing, (i) the Borrower
shall be under no obligation to mark any Borrower Materials “PUBLIC” and (ii) no Public Lender shall be permitted to withhold, condition or delay its approval or consent to any matter hereunder based solely on such Public
Lender’s failure or refusal to receive and/or review non-Public Borrower Materials.
7.3
Existence.
(a) Preserve,
renew and keep in full force and effect (i) the partnership, limited liability company or corporate existence, as applicable, of each Loan Party and (ii) the material rights, licenses, permits and franchises of each Loan Party,
(b) comply with all Laws and other Laws applicable to it and its assets, business and operations, the non-compliance with which could reasonably be expected to have a Material Adverse Effect, (c) to the extent applicable, at all times
maintain, preserve and protect all material franchises and trade names and all the remainder of its property used or useful in the conduct of its business, and (d) keep and cause each Loan Party to keep, its assets in good working order and
repair, ordinary wear and tear and damage by casualty or taking by condemnation excepted, and from time to time make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments and improvements thereto.
7.4
Payment of Taxes.
Duly pay and discharge, before the same shall become overdue, all taxes, assessments, impositions, and
other governmental charges payable by it or with respect to the Borrowing Base Properties, to the extent that same are not paid by the tenants under the respective Leases;
provided
,
however
, the failure of any Loan Party to pay such
taxes, assessments, impositions, or other governmental charges shall not constitute a Default or Event of Default as long as same are being contested in a manner which complies with the requirements of
Section 8.2.3
.
65
7.5
Insurance.
7.5.1
Insurance.
The Borrower shall, and shall cause each other Loan Party and each other Subsidiary or with respect to
Individual Properties where the tenant is responsible for providing insurance, the Loan Party shall cause such tenant to maintain insurance in accordance with such tenant’s lease with financially sound and reputable insurance companies against
such risks and in such amounts as is customarily maintained by Persons engaged in similar businesses or as may be required by Laws, and from time to time deliver to the Administrative Agent promptly following its request a detailed list, together
with copies of all policies of the insurance then in effect (provided Borrower has received same from the issuer thereof), stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof and
the properties and risks covered thereby.
7.5.2
Notice of Damage.
In the event of any damage or destruction to any
Borrowing Base Property by reason of fire or other hazard or casualty, the Borrower shall give immediate written notice thereof to the Administrative Agent. If there is any condemnation for public use of any Borrowing Base Property the Borrower
shall give immediate written notice thereof to the Administrative Agent (and the Administrative Agent shall thereafter promptly notify the Lenders). Further, the Borrower shall upon the request of the Administrative Agent provide to the
Administrative Agent a report as to the status of any insurance adjustment, condemnation claim, or restoration resulting from any casualty or taking.
7.6
Inspection.
Permit the Administrative Agent and the Lenders and its/their agents, representatives and employees to inspect
the Borrowing Base Properties, and any and all other assets of the Borrower or any of the Loan Parties, at reasonable hours upon reasonable notice, subject to the rights of tenants therein. The Borrower shall be responsible for the reasonable costs
incurred by the Administrative Agent of such inspections if an Event of Default is in existence but all other costs of such inspections shall be borne by the Lenders.
7.7
Loan Documents.
Observe, perform and satisfy all the terms, provisions, covenants and conditions to be performed by it
under, and to pay when due all costs, fees and expenses, and other Obligations to the extent required under, the Loan Documents.
7.8
Further Assurances.
Execute and deliver to the Administrative Agent such documents, instruments, certificates, assignments and other writings, and do such other acts, necessary or desirable in the reasonable judgment of the Administrative
Agent, for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents.
7.9
Books and Records.
Maintain and keep in accordance with GAAP (or such other accounting basis reasonably acceptable to the Administrative Agent), proper and accurate books, records and accounts reflecting all of the financial affairs of
the Borrower and such other Loan
66
Parties and the Borrower Subsidiaries and all items of income and expense in connection with their respective business and operations and in connection with any services, equipment or furnishings
provided in connection with the operation of the business of the Borrower, the other Loan Parties, and the Borrower Subsidiaries, whether such income or expense is realized thereby or by any other Person. The Administrative Agent shall have the
right, not more than once each quarter (unless an Event of Default shall have occurred and be continuing in which case as often as the Administrative Agent shall reasonably determine), during normal business hours and upon reasonable notice, to
examine such books, records and accounts at the office of the Person maintaining such books, records, correspondence, and accounts and to make such copies or extracts thereof as the Administrative Agent shall desire at the Administrative
Agent’s cost and expense. The Borrower shall give the Administrative Agent fifteen (15) Business Days’ notice of any change in the location of its financial records from the address specified at the beginning of this Agreement. The
Administrative Agent may discuss the financial and other affairs of the Borrower, the other Loan Parties, and Borrower Subsidiaries with any of its partners, owners, and any accountants hired by the Borrower, it being agreed that the Administrative
Agent and each of the Lenders shall use reasonable efforts not to divulge information obtained from such examination to others except in connection with Laws and in connection with administering the Loan, enforcing its rights and remedies under the
Loan Documents and in the conduct, operation and regulation of its banking and lending business (which may include, without limitation, the transfer of the Loan or of participation interests therein). Any assignee or transferee of the Loan,
co-lender, or any holder of a participation interest in the Loan shall deal with such information in the same manner and in connection with any subsequent transfer of its interest in the Loan or of further participation interests therein.
7.10
Business and Operations.
(a) Continue to engage in the type of businesses, acquisition, sale, financing, development
and operation of retail properties and usual and customary uses incidental to such retail activities presently conducted by them as of the Closing Date, respectively, and (b) be qualified to do business and in good standing under the Laws of
each jurisdiction, and otherwise to comply with all Laws, as and to the extent the same are required for the ownership, maintenance, management and operation of the assets of such Person except where the failure to be so qualified could not
reasonably be expected to have a Material Adverse Effect.
7.11
Estoppel.
Within ten (10) Business Days after a request
therefor from the Administrative Agent, which request shall not be made by the Administrative Agent more than once each Fiscal Year, furnish to the Administrative Agent a statement, duly acknowledged and certified, setting forth (a) the amount
then owing by the Borrower in respect of the Obligations, (b) the date through which interest on the Loan has been paid, (c) any offsets, counterclaims, credits or defenses to the payment by any Loan Party to the Obligations of which the
Borrower has knowledge and (d) whether any written notice of Default from the Administrative Agent to the Borrower or any of the other Loan Parties is then outstanding and acknowledging that this Agreement and the other Loan Documents are in
full force and effect and unmodified, or if modified, giving the particulars of such modification.
7.12
ERISA.
As soon as
possible and, in any event, within ten (10) days after any Loan Party, Borrower Subsidiary, or any ERISA Affiliate knows of the occurrence of any of the following which could reasonably be expected to have a Material Adverse Effect, deliver to
the
67
Administrative Agent a certificate of an executive officer of the Borrower setting forth details as to such occurrence and the action, if any, that the applicable the Borrower or other Loan Party
or Borrower Subsidiary or such ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given to or filed with or by such the Borrower, Loan Party, the ERISA Affiliate, the PBGC, a Plan participant or the
Plan administrator with respect thereto: (a) that a Reportable Event has occurred; (b) that any Plan has been deemed to be in “at risk status” (as defined in Section 430(i)(4) of the Code without regard to 430(i)(4)(B)
relating to the transition rule); (c) that the minimum required contribution (as defined in Section 430(a) of the Code) to a Plan has not been timely made; (d) that a Plan has been or may be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA; (e) that proceedings may be or have been instituted to terminate or appoint a trustee to administer a Plan; (f) that a proceeding has been instituted pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Plan; (g) that such the Borrower, Loan Party, Borrower Subsidiary, or ERISA Affiliate will or may incur any liability (including any indirect, contingent, or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA;
or (h) or that such the Borrower, the Loan Party or Borrower Subsidiary may incur any material liability pursuant to any employee welfare benefit plan (as defined in Section 3(l) of ERISA) that provides benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or any employee pension benefit plan (as defined in Section 3(2) of ERISA). Upon the request of the Administrative Agent, the Borrower shall (and shall cause the other
Loan Parties, ERISA Affiliates and Borrower Subsidiaries to) deliver to the Administrative Agent a complete copy of the annual report (Form 5500) of each Plan required to be filed with the Department of Labor. In addition to any certificates or
notices delivered to the Administrative Agent pursuant to the first sentence hereof, copies of any material notices received by the Borrower, a Loan Party, a Borrower Subsidiary, or any ERISA Affiliate with respect to any Plan shall be delivered to
the Administrative Agent no later than ten (10) days after the date such report has been filed with the Internal Revenue Service, the Department of Labor, or the PBGC or such notice has been received by the Borrower, Loan Party or Borrower
Subsidiary or ERISA Affiliate, as applicable.
7.13 [Reserved].
7.14
Costs and Expenses.
Pay all costs and expenses as required by
Section 15.9.1
.
7.15
Indemnification.
At all times, both before and after repayment of the Loan, at its sole cost and expense defend, indemnify,
exonerate and save harmless the Administrative Agent and each of the Lenders and all those claiming by, through or under the Administrative Agent and each of the Lenders as required by
Section 15.9.2
.
7.16
Interest Coverage Ratio
.
Maintain an Interest Coverage Ratio greater than or equal to 1.85:1. The Interest Coverage Ratio
covenant shall be tested by the Administrative Agent as of each Calculation Date with results based upon the results for the most recent Calculation Period, such calculation and results to be verified by the Administrative Agent.
68
7.17
Leverage Ratio
. Maintain a Leverage Ratio as determined as of each Calculation
Date of not more than sixty percent (60%). The Leverage Ratio covenant shall be tested by the Administrative Agent as of each Calculation Date, such calculation and results to be verified by the Administrative Agent.
7.18
Fixed Charge Ratio
.
Maintain a Fixed Charge Ratio as determined as of each Calculation Date as follows:
(a) Commencing with the Closing Date and continuing until the end of the quarter ending March 31, 2014, not less than
1.35:1;
(b) Commencing with the quarter ending June 30, 2014 and continuing until the end of the quarter ending
March 31, 2015, not less than 1.40:1;
(c) Commencing with the quarter ending June 30, 2015 and continuing until
the end of the quarter ending March 31, 2016, not less than 1.45:1; and
(d) Commencing with the quarter ending
June 30, 2016 and as of each quarter end thereafter, not less than 1.50:1.
The Fixed Charge Ratio covenant shall be tested by the Administrative
Agent as of each Calculation Date with results based upon the results for the most recent Calculation Period, such calculation and results to be verified by the Administrative Agent.
7.19
Net Worth
.
Maintain a Net Worth as determined as of each Calculation Date equal to or greater than the aggregate of
(a) $ 457,167,000 plus (b) seventy-five percent (75%) of the cumulative net cash proceeds received from and the value of assets acquired (net of (i) underwriters’ discounts, commissions and other reasonable out-of-pocket
expenses of issuance actually paid to any Person (other than a Loan Party or an Affiliate of any Loan Party) and (ii) Debt incurred or assumed in connection therewith) through the issuance of Capital Stock by CRT after March 31, 2013. The
Net Worth covenant shall be tested by the Administrative Agent as of each Calculation Date, such calculation and results to be verified by the Administrative Agent.
7.20
Secured Debt Ratio
. Maintain a Secured Debt Ratio as determined as of each Calculation Date of not more than fifty-five
percent (55%). The Secured Debt Ratio covenant shall be tested by the Administrative Agent as of each Calculation Date, such calculation and results to be verified by the Administrative Agent.
7.21
Borrowing Base Property Covenants.
7.21.1
Occupancy Ratio.
Not permit the aggregate Occupancy Ratio for the Borrowing Base Properties (determined on an
aggregate rentable square foot basis) to be less than eighty percent (80%).
7.21.2
Retail Center.
Maintain each
Borrowing Base Property at all times as a retail center located in the United States owned by a Borrowing Base Property Owner.
69
7.21.3
Business Strategy.
Maintain ownership of each Borrowing Base
Property at all times consistent with the Borrower’s business strategy, and each Borrowing Base Property shall at all times be of an asset quality consistent with the quality of Borrowing Base Properties owned by the Borrowing Base Property
Owners as of the date hereof.
7.21.4
Minimum Borrowing Base Properties
. Maintain a minimum of fifteen
(15) Borrowing Base Properties at all times.
7.22
Variable Rate Debt.
Maintain an aggregate Pro Rata Share of the Debt
(including the Loan) of the Consolidated CRT Entities and the Unconsolidated CRT Entities which is Variable Rate Indebtedness of not more than thirty-five (35%) percent of the Total Asset Value.
7.23
Replacement Documentation
.
Upon receipt of an affidavit of an officer of the Administrative Agent as to the loss, theft,
destruction or mutilation of the Note or any other loan document which is not of public record, and, in the case of any such loss, theft, destruction or mutilation, upon surrender and cancellation of such Note or other loan document, the Borrower
will issue, in lieu thereof, a replacement Note or other loan document in the same principal amount thereof and otherwise of like tenor.
7.24
Maintenance of REIT Status.
CRT shall engage in such business activities, and shall refrain from engaging in such
activities, so as to continue to meet the requirements for qualification and taxation as a REIT under the Code. CRT shall at all times remain listed and traded on the New York Stock Exchange.
7.25
The Lenders’ Consultants.
7.25.1
Right to Employ.
The Borrower agrees that the Administrative Agent shall have the right to employ on its behalf
and on behalf of the Lenders, its own personnel, or one or more engineers, architects, environmental advisors, scientists, accountants, and attorneys to act as an advisor to the Administrative Agent and the Lenders in connection with the Loan (each
of which shall be a “
Lenders’ Consultant
”).
7.25.2
Functions.
The functions of a
Lenders’ Consultant shall include, without limitation: (i) inspection and physical review of any Borrowing Base Property; (ii) review and analysis of environmental matters; (iii) review and analysis of financial and legal
matters; and (iv) providing usual inspection and review services for any Repair Work.
7.25.3
Payment.
The
reasonable costs and fees of the Lenders’ Consultants shall be paid by the Loan Parties upon billing therefor and, if not so paid within thirty (30) days, may be paid directly by the Lenders through a Loan Advance, provided, however that
the costs and fees of any Lenders’ Consultants that are engineers, architects, environmental consultants or scientists shall be borne by the Lenders unless an Event of Default shall exist.
70
7.25.4
Access.
The Loan Parties shall provide the Lenders’
Consultants with reasonable access to all Borrowing Base Properties.
7.25.5
No Liability.
Neither the
Administrative Agent nor any Lender shall have liability to the Borrower, any Loan Party, or third party on account of: (i) services performed by the Lenders’ Consultant; or (ii) any failure or neglect by the Lenders’ Consultant
to properly perform services. The Borrower shall have no rights under or relating to any agreement, report, or similar document prepared by the Lenders’ Consultant for the Administrative Agent or the Lenders. No Lenders’ Consultant shall
have liability to the Borrower, any Loan Party, or third party on account of: (x) services performed by such Lenders’ Consultant; or (y) any failure or neglect by such Lenders’ Consultant to properly perform services, except for
its gross negligence or willful misconduct.
7.26
Payment of Obligations
.
Pay and discharge as the same shall
become due and payable, all lawful claims which, if unpaid, would by Law become a Lien upon its property (other than Permitted Liens).
7.27
Compliance with Laws
.
Comply in all material respects with the requirements of all Laws applicable to it or
to its business or property, except in such instances in which (a) such requirement of Law is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
So long as any Lender shall have any Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall not, nor shall it permit any other Loan Party to directly or indirectly:
8.1
No Changes to the Borrower and other Loan Parties.
Without the prior written consent of the Administrative Agent,
such consent not be unreasonably withheld, conditioned or delayed after not less than thirty (30) days’ prior written notice (with reasonable particularity of the facts and circumstances attendant thereto): (a) change its jurisdiction
of organization, (b) change its organizational structure or type, (c) change its legal name, or (d) change the organizational number (if any) assigned by its jurisdiction of formation or its federal employment identification number
(if any).
8.2
Restrictions on Liens
.
Create, incur, assume or suffer to exist any Lien upon or with respect
to any property or assets (real or personal, tangible or intangible, including, without limitation, the Borrowing Base Properties), whether now owned or hereafter acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable with recourse) or assign any right to receive income or permit the filing of any financing statement under the UCC or any other similar
notice of Lien under any similar recording or notice statute, or grant rights with respect to, or otherwise encumber or create a security interest in, such property or assets or any portion thereof or any other revenues therefrom or the proceeds
payable upon the sale,
71
transfer or other disposition of such property or asset or any portion thereof, or permit or suffer any such action to be taken, except the following (singly and collectively, “
Permitted
Liens
”):
8.2.1
Permitted Debt.
Liens to secure Permitted Debt, provided that (x) the Borrower will be
in compliance with the Financial Covenants considering the consequences of the granting of any such Lien and (y) no such Lien shall be secured by any Borrowing Base Property, the ownership interest in any Borrowing Base Property Owner, or any
other assets of any Borrowing Base Property Owner;
8.2.2
Tax Liens.
Liens for taxes, assessments or other
governmental charges not yet delinquent or which are being diligently contested in good faith and by appropriate proceedings, if (a) to the extent such contest concerns a Borrowing Base Property, reasonable reserves in an amount not less than
the tax, assessment or governmental charge being so contested shall have been established in a manner reasonably satisfactory to the Administrative Agent or deposited in cash (or cash equivalents) with the Administrative Agent to be held during the
pendency of such contest, or such contested amount shall have been duly bonded in accordance with applicable Law, (b) no imminent risk of sale, forfeiture or loss of any interest in any Borrowing Base Property or any part thereof arises during
the pendency of such contest and (c) such contest could not reasonably be expected to have a Material Adverse Effect;
8.2.3
Judgment Liens.
Liens in respect of property or assets imposed by Law, which do not secure Debt, such as judgment
Liens (provided such judgment Liens do not cause the occurrence of an Event of Default under
Section 10.1
), carriers’, warehousemen’s, material men’s and mechanics’ liens and other similar Liens arising in the
ordinary course of business, (a) which, except for such judgment Liens, do not in the aggregate materially detract from the value of any property or assets or have, and could not reasonably be expected to have, a Material Adverse Effect, and
(b) which, except for such judgment Liens, are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to any such Lien;
8.2.4
Personal Property Liens.
Liens relating to personal property financing leases entered into in the ordinary course
of business with respect to equipment, fixtures, furniture, furnishings and similar assets; and
8.2.5
Intentionally
Omitted.
8.2.6
Easements, etc.
Liens in connection with easements, rights-of-way, zoning restrictions and other
similar encumbrances affecting real property which, in the aggregate, do not impose material financial obligations on the Borrower or any Loan Party, and which do not, in the aggregate, materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of such property or the Loan Party that owns such property.
8.2.7
Title Matters.
Liens and other matters of record noted on any title insurance policy for a Borrowing Base Property
delivered to the Administrative Agent, with the Administrative Agent having received the title insurance policies delivered for the Borrowing Base Properties as of the Closing Date.
72
8.3
Consolidations, Mergers, Sales of Assets, Issuance and Sale of
Equity
.
(a) Dissolve, terminate or liquidate or, without the prior written consent of the Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed, consolidate with or merge with or into any
other Person, (b) issue, sell, lease, transfer or assign to any Persons or otherwise dispose of (whether in one transaction or a series of transactions) any portion of its assets (whether now owned or hereafter acquired), including, without
limitation, any securities, membership or partnership interests, or other interests of any kind in any other Loan Party or Borrower Subsidiary, directly or indirectly (whether by the issuance of rights of, options or warrants for, or securities
convertible into, any such security, membership or partnership interests or other interests of any kind), (c) permit another Person to merge with or into it, (d) acquire all or substantially all the capital stock, membership or partnership
interests or assets of any other Person, or (e) take any action which could have the effect, directly or indirectly, of diluting the economic interest of any Loan Party in any other Loan Party or Borrower Subsidiary; except the following:
8.3.1
Transfers.
Transfers pursuant to the Loan Documents and other agreements in favor of the Administrative Agent for
the ratable benefit of the Lenders;
8.3.2
Non-Loan Parties.
Any such dissolution, liquidation, or termination which
does not involve a Loan Party;
8.3.3
Loan Parties.
With the prior written consent of the Administrative Agent and
the Required Lenders, such consent not to be unreasonably withheld or delayed, any consolidation, merger, or issuance so long as the Borrower is the surviving entity, provided that (a) the Borrower will be in compliance with the Financial
Covenants considering the consequences of such event, (b) no such event shall cause a Change of Control, and (c) each Borrowing Base Property Owner will continue to be a Wholly-Owned Subsidiary of the Borrower;
8.3.4
Borrowing Base Properties.
Sales of any Borrowing Base Property, provided the Release Conditions are satisfied
with respect thereto;
8.3.5
Leases.
Leases of all or any portion of any Borrowing Base Property;
8.3.6
Property Transfers.
Sales, transfers, assignments or other dispositions of other assets of the Borrower, any Loan
Party or any Borrower Subsidiary which do or do not constitute Borrowing Base Properties; provided that (a) the Borrower will be in compliance with the Financial Covenants considering the consequences of any such sale; and (b) other than
in connection with the sale of the Designated Properties, the aggregate amount of any such sales, transfers, or assignments of such other assets shall not exceed ten percent (10%) of the Total Asset Value, as verified by the Administrative
Agent, unless prior written approval is obtained from the Administrative Agent (not to be unreasonably withheld, conditioned or delayed);
73
8.3.7
Ordinary Course.
Sales or dispositions in the ordinary course of
business of worn, obsolete or damaged items of personal property or fixtures which are suitably replaced;
8.3.8
With
Consent.
Transactions, whether outright or as security, for which the Administrative Agent’s, the Required Lenders’ or the Lenders’, as applicable, prior written consent has been obtained to the extent such approval is required
under this Agreement;
8.3.9
Permitted Investments.
In connection with a Permitted Investment;
8.3.10
Equity Issuances.
The issuance or sale of equity interests in the Borrower or CRT;
8.3.11
Merger of Loan Parties.
Mergers of and between Loan Parties, provided (a) the Borrower and CRT shall at all
times remain surviving entities, and (b) the Administrative Agent receives ten (10) Business Days prior written notice of the proposed merger;
8.3.12
Cedar-Riverview.
The sale, transfer, assignment, redemption or other disposition of all or a portion of any
preferred limited partnership interest in Cedar-Riverview LP; or
8.3.13
Cedar-Revere.
The creation of further
condominium units in the Individual Property owned by Cedar-Revere, LLC, and the performance of construction in connection therewith, subject to the Administrative Agent’s reasonable approval of the condominium documents creating such
additional units and such normal and customary due diligence as the Administrative Agent may reasonably require.
8.4
Restrictions on Debt.
(a) Create, incur or assume any Debt, or make any voluntary prepayments of any Debt in respect of which it is an obligor, (b) enter into, acquiesce, suffer or permit any amendment, restatement or
other modification of the documentation evidencing and/or securing any Debt under which it is an obligor or (c) increase the amount of any Debt existing as of the Closing Date; except with respect to the following (singly and collectively,
“
Permitted Debt
”):
8.4.1
Debt under this Agreement.
The Obligations;
8.4.2
Unsecured Debt.
Unsecured Debt of CRT and its Subsidiaries which (a) has a maturity date that is the same as,
or later than, the Tranche B Term Facility Maturity Date, and (b) has financial covenants that are no more restrictive than the Financial Covenants, provided that the Borrower will be in compliance with the Financial Covenants and the Total
Outstandings will not exceed the Maximum Loan Amount considering the consequences of the incurrence of such Debt; without limiting, but notwithstanding, the foregoing, and for the avoidance of doubt, the Revolving/Term Facility and any Swap
Contracts with any Lender are deemed to be Permitted Debt;
74
8.4.3
Individual Property Debt.
Individual Property secured Debt of the
Borrower, CRT or any Borrower Subsidiary (other than any Loan Party) which is recourse to the Borrower or CRT consistent with customary project finance market terms and conditions (excluding the Obligations) in an amount not to exceed fifteen
percent (15%) of the Total Asset Value in the aggregate outstanding at any one time, provided that the Borrower will be in compliance with the Financial Covenants and the Total Outstandings will not exceed the Maximum Loan Amount considering
the consequences of the incurrence of such Debt;
8.4.4
Nonrecourse Debt.
Individual Property secured Debt of the
Borrower, CRT or any Borrower Subsidiary (other than any Loan Party) which is nonrecourse to the Borrower (other than recourse in connection with customary nonrecourse or “bad boy” carve out provisions) or CRT, provided that the Borrower
will be in compliance with the Financial Covenants considering the consequences of the incurrence of such Debt;
8.4.5
Ordinary Course.
Debt incurred in the ordinary course of business for the purchase of goods or services which are payable, without interest, within ninety (90) days of billing;
8.4.6
Capital Leases.
Debt under capital leases of the type described in
Section 8.2.5;
8.4.7
Cross-Collateralized Debt.
Individual Property Debt incurred (other than by any Loan Party) under multi-property,
cross-collateralized financings having an outstanding aggregate principal balance not to exceed $45,000,000; and
8.4.8
Other Unsecured Debt.
Unsecured Debt of a type not contemplated by any of the foregoing in an amount not to exceed $10,000,000 in the aggregate outstanding at any time; and
8.4.9
Other Debt.
Debt, whether secured or unsecured, of a type not contemplated by any of the foregoing, for which
Required Lenders’ prior written consent has been obtained.
8.5
Other Business.
Enter into any line of business
or make any material change in the nature of its business, purposes or operations, or undertake or participate in activities other than the continuance of its present business except as otherwise specifically permitted by this Agreement or the other
Loan Documents.
8.6
Change of Control
.
Permit or otherwise suffer to occur any Change of Control.
8.7
Forgiveness of Debt
.
Voluntarily cancel or otherwise forgive or release any Debt owed to it by any Person,
except for adequate consideration and except for settlement of lease obligations of tenants in the Borrower’s reasonable business judgment.
8.8
Affiliate Transactions
.
Enter into, or be a party to, any transaction with any Person which is an Affiliate of
any Loan Party, except transactions (a) involving the offering or sale of a Person’s equity interests on an arm’s length basis, or (b) entered into in the ordinary
75
course of business and on terms which are no less favorable to such Loan Party or Borrower Subsidiary than would be obtained in a comparable arm’s-length transaction with an unrelated third
party, provided that this
Section 8.8
shall not apply to transactions entirely between and among Loan Parties or entirely between and among Borrower Subsidiaries that are not Loan Parties.
8.9
ERISA.
Establish or be obligated to contribute to any Plan.
8.10
Bankruptcy Filings.
With respect to any of the Loan Parties, file a petition under any Debtor Relief Laws for
the liquidation of all or a major portion of its assets or property.
8.11
Investment Company.
Become an
“investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
8.12
[Reserved].
8.13
Use of Proceeds.
Permit the proceeds of the Loan, or any other accommodation at any time made hereunder, to be used
for any purpose which entails a violation of, or is inconsistent with, Regulation T, U or X of the Board, or for any purpose other than to (a) repay certain existing indebtedness of the Borrower, (b) provide working capital to the
Borrower, CRT, and the Borrower Subsidiaries, (c) provide funds for acquisitions, development, capital expenditures, and refinancings of real estate properties by the Borrower, CRT, and the Borrower Subsidiaries, (d) pay certain closing
and transactional costs as approved by the Administrative Agent and (e) for other lawful REIT purposes.
8.14
Distributions.
Authorize, declare, or pay any Distributions on behalf of the Borrower, except for Permitted Distributions.
8.15
Restrictions on Investments.
Make or permit to exist or to remain outstanding any Investment except which are in:
(a) marketable direct or guaranteed general obligations of the United States of America which mature within one year from
the date of purchase;
(b) bank deposits, certificates of deposit and banker’s acceptances, or other obligations in or
of the Lenders or banks located within and chartered by the United States of America or a state and having assets of over $500,000,000;
(c) the Borrower’s Subsidiaries (both Subsidiaries as of the date hereof and any other Person that becomes a Borrower
Subsidiary), subject in all instances to the terms of this Agreement; and
(d) Permitted Investments.
8.16
Negative Pledges, Etc.
Enter into any agreement subsequent to the Closing Date (other than a Loan Document) which
(a) prohibits the creation or assumption of any Lien upon any of the Borrowing Base Properties or the ownership interest therein, including, without
76
limitation, any hereafter acquired property, (b) specifically prohibits the amendment or other modification of this Agreement or any other Loan Document, or (c) could reasonably be
expected to have a Material Adverse Effect.
8.17
Swap Contracts
. Not enter into any Swap Contract, unless
(i) such Swap Contract was entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by
such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments
on outstanding transactions to the defaulting party other than normal setoff or netting rights;
9.1
Legal Requirements
. The Borrower,
any Borrower Subsidiary or any Loan Party may contest in good faith any claim, demand, levy or assessment under any Laws by any Person or entity if: (i) the contest is based upon a material question of Law or fact raised by the Borrower in good
faith; (ii) such Person properly commences and thereafter diligently pursues the contest; (iii) the contest will not materially impair the ability to ultimately comply with the contested Law should the contest not be successful;
(iv) if the contest concerns a Borrowing Base Property or a Borrowing Base Property Owner, reasonable reserves in an amount necessary to undertake and pay for such contest and any corrective or remedial action then or thereafter reasonably
likely to be necessary shall have been established in a manner reasonably satisfactory to the Administrative Agent or deposited in cash (or cash equivalents) with the Administrative Agent to be held during the pendency of such contest, or such
contested amount shall have been duly bonded in accordance with applicable Law; (v) no Event of Default exists; (vi) if the contest relates to an Environmental Legal Requirement, the conditions set forth in the Environmental Indemnity
Agreement relating to such contests shall be satisfied; (vii) no imminent risk of sale, forfeiture or loss of any interest in any Borrowing Base Property or any part thereof arises during the pendency of such contest; and (viii) such
contest could not reasonably be expected to have a Material Adverse Effect.
9.2
Limited Recourse Provisions.
9.2.1
Borrower Fully Liable.
Borrower shall be fully liable for the Loan and the Obligations of the Borrower to the
Administrative Agent and each of the Lenders.
9.2.2
Certain Non-Recourse.
This Agreement and all Loan Documents
have been executed by the undersigned in its capacity as an officer of CRT, as general partner of the Borrower on behalf of the Borrower or the Loan Parties, or in its capacity as an authorized signatory of the Borrower or the Loan Parties, and not
individually, and none of the trustees, officers, directors, members, limited partners, or shareholders of the Borrower or CRT or any Loan Party shall be bound or have any personal liability hereunder or thereunder except under any Guaranty or other
Loan Document signed by such Person, if any, other than a signature in a representative capacity. Under no circumstances shall any party be entitled to seek recourse or commence any action against any of the trustees, officers, directors, members,
limited partners, or shareholders
77
of the Borrower or CRT or any such Person’s personal assets for the performance or payment of any obligation hereunder. In all other Loan Documents, all parties shall not seek recourse or
commence any action against any of the trustees, officers, directors, members, limited partners, or shareholders of Borrower or CRT or any of such Person’s personal assets for the performance or payment of any obligation hereunder or
thereunder, except under any Guaranty or other Loan Document signed by such Person, other than a signature in a representative capacity.
9.2.3
Additional Matters.
Nothing contained in the foregoing non-recourse provisions or elsewhere shall: (a) limit
the right of the Administrative Agent or any of the Lenders to obtain injunctive relief or to pursue equitable remedies under any of the Loan Documents, excluding only any injunctive relief ordering payment of obligations by any Person or entity for
which personal liability does not otherwise exist; or (b) limit the liability of any attorney, law firm, accountant or other professional who or which renders or provides any written opinion or certificate to the Administrative Agent or any of
the Lenders in connection with the Loan even though such Person or entity may be a limited partner of the Borrower.
9.3
Payment of Obligations.
Upon the payment in full of the Obligations, in immediately available funds, including, without limitation, all unreimbursed costs and expenses of the Administrative Agent and of each Lender for which the
Borrower is responsible, and the termination of this Agreement, the Administrative Agent shall execute and deliver such documents and termination statements as the Borrower or any other Loan Party reasonably requests to evidence such termination.
However, such termination by the Administrative Agent shall not be deemed to terminate or release any Person from any obligation or liability under the Loan Documents which specifically by its terms survives the payment in full of the Obligations.
The following provisions deal with Defaults, Events of
Default, notice, grace and cure periods, and certain rights of the Administrative Agent and the Lenders following an Event of Default.
10.1
Default and Events of Default
.
The term “Default” as used herein or in any of the other Loan
Documents shall mean any fact or circumstance which constitutes, or upon the lapse of time, or giving of notice, or both, could constitute, an Event of Default. The occurrence of any of the following events, continuing uncured beyond any applicable
grace, notice or cure period, respectively, shall constitute an event of default (“
Event of Default
”). Upon the occurrence of any Event of Default described in
Section 10.1.8
, any and all Obligations shall become due and
payable without any further act on the part of the Administrative Agent. Upon the occurrence of any other Event of Default, the Administrative Agent may, and upon the request of the Required Lenders shall, declare that any and all Obligations shall
become immediately due and payable.
10.1.1
Failure to Pay the Loan.
The failure by the Borrower to pay when due any
principal of, interest on, or fees in respect of, any Loan, and the specific grace period, if any, allowed for the default in question in
Section 10.2
or elsewhere in this Agreement shall have expired without such default having been
cured.
78
10.1.2
Failure to Make Other Payments.
The failure by the Borrower to pay
when due (or upon demand, if payable on demand) any payment Obligation other than any payment Obligation on account of the principal of, or interest on, or fees in respect of, the Loan, and the specific grace period, if any, allowed for the default
in question in
Section 10.2
or elsewhere in this Agreement shall have expired without such default having been cured.
10.1.3
Loan Documents.
Any other default in the performance of any term or provision of the Loan Documents, or a breach,
or other failure to satisfy, any other term, provision, condition or warranty under any Loan Document, and the specific grace period, if any, allowed for the default in question in
Section 10.2
or elsewhere in this Agreement shall have
expired without such default having been cured.
10.1.4
Default under Other Agreements.
Except with respect to the
Carveout Designated Properties, (i) The Borrower, CRT or any other Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Debt or
Guarantee (including amounts owing to all creditors under any combined or syndicated credit arrangement but excluding the Debt hereunder) such that as a result thereof the aggregate outstanding principal amount of such Debt or Guarantees with
respect to which such a failure exists at any time shall exceed $40,000,000, or (B) fails to observe or perform any other agreement or condition relating to any such Debt or Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or other event is (1) to cause, or to permit the holder or holders of such Debt or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice or passage of time, or both, if required, in excess of $40,000,000 in the aggregate of the outstanding principal amount of such Debt to be demanded
or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise) at any time, or (2) an offer to repurchase, prepay, defease or redeem in excess of $40,000,000 of the outstanding principal amount of such Debt to
be made at any time, prior to its stated maturity, or (3) Guarantees securing in excess of $40,000,000 of the outstanding principal amount of such Debt to become payable at any time or (4) cash collateral in excess of $40,000,000 in
respect thereof to be demanded at any time; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the
Borrower, CRT or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower, CRT or any other Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the Borrower, CRT or such Subsidiary as a result thereof is greater than $40,000,000 in the aggregate at any time.
79
10.1.5
Representations and Warranties.
If any representation or warranty
made by the Borrower or by any of the other Loan Parties in the Loan Documents was untrue or misleading in any material respect as of the date made or deemed made, including, without limitation, all representations and warranties made in
Article
6
herein.
10.1.6
Affirmative Covenants.
The breach of any covenant contained in
Article 7
herein,
including, without limitation, the Financial Covenants.
10.1.7
Negative Covenants.
The breach of any covenant
contained in
Article 8
herein.
10.1.8
Financial Status and Insolvency.
Any Loan Party shall:
(i) admit in writing its inability to pay its debts generally as they become due; (ii) file a petition in bankruptcy or a petition to take advantage of any insolvency act; (iii) make an assignment for the benefit of creditors;
(iv) consent to, or acquiesce in, the appointment of a receiver, liquidator or trustee of itself or of the whole or any substantial part of its properties or assets; (v) file a petition or answer seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the Federal Bankruptcy laws or any other applicable Law; (vi) have a court of competent jurisdiction enter an order, judgment or decree appointing a receiver,
liquidator or trustee of a Loan Party, or of the whole or any substantial part of the property or assets of a Loan Party, and such order, judgment or decree shall remain unvacated or not set aside or unstayed for ninety (90) days;
(vii) have a petition filed against it seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the Federal Bankruptcy laws or any other applicable Law and such petition shall remain
undismissed for ninety (90) days; (viii) have, under the provisions of any other Law for the relief or aid of debtors, any court of competent jurisdiction assume custody or control of a Loan Party or of the whole or any substantial part of
its property or assets and such custody or control shall remain unterminated or unstayed for ninety (90) days; or (ix) have an attachment or execution levied against any substantial portion of the property of a Loan Party or against any
portion of a Borrowing Base Property which is not discharged or dissolved by a bond within sixty (60) days.
10.1.9
Loan Documents.
Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and
effect; or any Loan Party contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document.
10.1.10
Judgments.
One or more judgments or decrees shall be entered against Borrower or any
Loan Party involving a liability (not paid or fully covered (subject to deductibles) by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed
or bonded pending appeal for any period of sixty (60) consecutive days, and the aggregate amount of all such judgments exceeds (a) $5,000,000 for the Borrower or CRT and (b) $750,000 for any other Loan Party.
80
10.1.11
ERISA.
(a) If (i) any Plan shall be deemed to be in
“at risk status” (as defined in Section 430(i)(4) of the Code without regard to Section 430(i)(4)(B) relating to the transition rule), (ii) any Plan shall have had or is likely to have a trustee appointed to administer such
Plan, (iii) any Plan is, shall have been or is likely to be terminated or to be the subject of a distress termination proceeding under ERISA, (iv) a minimum required contribution (as defined in Section 430(a) of the Code) for a Plan
has not been timely made, (v) a Loan Party or any ERISA Affiliate has incurred or is likely to incur a liability to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971, 4975 or 4980 of the Code, or (vi) a Loan Party has incurred or is likely to incur liabilities pursuant to one or more employee welfare benefit plans (as defined in Section 3(l) of ERISA) that primarily
provide health and welfare benefits to retired employees or other former employees (other than as required by Section 601 of ERISA) and any of the foregoing could have a Material Adverse Effect; (b) if there shall result from any event or
events described in clauses (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this
Section 10.1.11
, the imposition of a lien, the granting of a security interest, or a liability or a material risk of incurring a liability which could have,
or reasonably be expected to have, a Material Adverse Effect; or (c) if any such lien, security interest or liability is imposed or granted and, individually, and/or in the aggregate, in the reasonable opinion of the Administrative Agent could
have, or reasonably be expected to have, a Material Adverse Effect.
10.1.12
Change of Control.
If a Change of
Control shall occur.
10.1.13
Indictment; Forfeiture.
The indictment of, or institution of any legal process or
proceeding against, the Borrower or any other Loan Party under any applicable Law where the relief, penalties, or remedies sought or available include the forfeiture of any property of Borrower and/or any other such Loan Party and/or the imposition
of any stay or other order, the effect of which could be to restrain in any material way the conduct by the Borrower and/or any other such Loan Party of its business in the ordinary course.
10.1.14
Generally.
A default by the Borrower in the performance of any term, provision or condition of this Agreement to
be performed by the Borrower, or a breach, or other failure to satisfy, any other term provision, condition, covenant or warranty under this Agreement and such default remains uncured beyond any applicable specific grace period provided for in this
Agreement, including, without limitation, as set forth in
Section 10.2
below.
10.2
Grace Periods and
Notice.
As to each of the foregoing events the following provisions relating to grace periods and notice shall apply:
10.2.1
No Notice or Grace Period.
There shall be no grace period and no notice provision with respect to the payment of
principal at maturity and/or in connection with a Mandatory Principal Prepayment (except as provided in
Section 2.3.8
) and no grace period and no notice provision with respect to defaults related to the voluntary filing of bankruptcy or
reorganization proceedings or an assignment for the benefit of creditors, or subject to
Sections 10.2.4
and
10.2.5
, with respect to a breach of warranty or
81
representation under
Article 6
, or (subject to
Section 10.2.5
) with respect to the breach of any of the affirmative covenants set forth in Article 7 (unless a grace or cure
period is specifically provided for therein) or (subject to
Section 10.2.5
) with respect to the breach of any of the negative covenants set forth in
Article 8
.
10.2.2
Nonpayment of Interest.
As to the nonpayment of interest there shall be a three (3) Business Day grace
period without any requirement of notice from the Administrative Agent.
10.2.3
Other Monetary Defaults.
All other
monetary defaults shall have a three (3) Business Day grace period following notice from the Administrative Agent.
10.2.4
Nonmonetary Defaults Capable of Cure.
As to non-monetary Defaults which are reasonably capable of being cured or
remedied, unless there is a specific shorter or longer grace period provided for in this Loan Agreement or in another Loan Document, there shall be a thirty (30) day grace period following such Default; provided that if such Default would
reasonably require more than thirty (30) days to cure or remedy, such longer period as requested by the Borrower but in no event longer than ninety (90) days following such Default and no extension shall be granted if such Default has
caused a Material Adverse Effect.
10.2.5
Borrowing Base Property Defaults.
As to any non-monetary Defaults which
are capable of being cured or remedied by the removal of any Individual Property or Individual Properties from being Borrowing Base Properties, there shall be a thirty (30) day grace period following such Default for the Borrower to cure or
remedy such Default by removing such Individual Properties from being Borrowing Base Properties, if required, or by removing such Borrowing Base Properties from the Borrowing Base Value.
11.1
Remedies.
Upon the occurrence and during the
continuance of an Event of Default, whether or not the Obligations evidenced by this Agreement shall be due and payable or the Administrative Agent shall have instituted any action for the enforcement of the Loan Documents, the Administrative Agent
may in its sole and absolute discretion, and shall upon the direction of the Required Lenders, in addition to any other remedies which the Administrative Agent may have hereunder or under the other Loan Documents, or otherwise, and not in limitation
thereof:
11.1.1
Accelerate Debt.
Declare the Obligations immediately due and payable (provided that in the case of
a voluntary petition in bankruptcy filed by Borrower or an involuntary petition in bankruptcy filed against Borrower (after expiration of the grace period, if any, set forth in
Section 10.1.8
), such acceleration shall be automatic).
11.1.2
Intentionally Omitted.
11.1.3
Pursue Remedies.
Pursue any and all remedies provided for hereunder, under any one or more of the other Loan
Documents, and/or otherwise.
82
11.2
Distribution of Liquidation Proceeds.
Subject to the terms and
conditions of this Agreement, the Administrative Agent shall distribute all Liquidation Proceeds in the order and manner set forth below:
First
: To the Administrative Agent, towards any fees and any expenses for which the Administrative Agent is entitled to
reimbursement under this Agreement or the other Loan Documents not theretofore paid to the Administrative Agent.
Second
: To all applicable Lenders in accordance with their proportional share based upon their respective Commitment
Percentages until all Lenders have been reimbursed for all fees and expenses which such Lenders have previously paid to the Administrative Agent and not theretofore paid to such Lenders.
Third
: Pari passu, (a) to all applicable Lenders in accordance with their proportional share based upon their
respective Commitment Percentages until all Lenders have been paid in full all principal and interest due to such Lenders under the Loan, with each Lender applying such proceeds for purposes of this Agreement first against the outstanding principal
balance due to such Lender under the Loan and then to accrued and unpaid interest due under the Loan, and (b) to payment of breakage, termination or other payments, and any interest accrued thereon, due under any Swap Contract between any Loan
Party and Administrative Agent or any Lender.
Fourth
: To all applicable Lenders in accordance with their
proportional share based upon their respective Commitment Percentages until all Lenders have been paid in full all other amounts due to such Lenders under the Loan including, without limitation, any costs and expenses incurred directly by such
Lenders to the extent such costs and expenses are reimbursable to such Lenders by the Borrower under the Loan Documents.
Fifth
: To the Borrower or such third parties as may be entitled to claim Liquidation Proceeds.
11.3
Power of Attorney.
For the purpose of exercising the rights granted by this Article 11, as well as any and
all other rights and remedies of Administrative Agent under the Loan Documents, the Borrower hereby irrevocably constitutes and appoints the Administrative Agent (or any agent designated by Administrative Agent) its true and lawful attorney-in-fact,
with full power of substitution, upon and following any Event of Default which is continuing, to execute, acknowledge and deliver any instruments and to do and perform any acts in the name and on behalf of the Borrower. In connection with the
foregoing power of attorney, the Borrower hereby grants unto the Administrative Agent (acting through any of its officers) full power to do any and all things necessary or appropriate in connection with the exercise of such powers as fully and
effectually as the Borrower might or could do, hereby ratifying all that said attorney shall do or cause to be done by virtue of this Agreement. The foregoing power of attorney shall not be affected by any disability or incapacity suffered by the
Borrower and shall survive the same. All powers conferred upon the Administrative Agent by this Agreement, being coupled with an interest, shall be irrevocable until this Agreement is terminated by a written instrument executed by a duly authorized
officer of the Administrative Agent.
83
|
12.
|
SECURITY INTEREST AND SET-OFF.
|
12.1
Security Interest
.
The
Borrower hereby grants (and shall cause each other Loan Party to grant) to the Administrative Agent and each of the Lenders, a continuing lien, security interest and right of setoff (with setoff being subject to
Section 12.2
) as security
for all of the Obligations, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Administrative Agent or any of the Lenders or any of their respective successors and
assigns, or in transit to any of them.
12.2
Set-Off/Sharing of Payments.
If any Event of Default occurs, any such
deposits, balances or other sums credited by or due from Administrative Agent or any of the Lenders, or from any of their respective Affiliates, to the Borrower may to the fullest extent not prohibited by applicable Law at any time or from time to
time, without regard to the existence, sufficiency or adequacy of any other collateral, and without notice or compliance with any other condition precedent now or hereafter imposed by statute, rule of law or otherwise, all of which are hereby
waived, be set off, appropriated and applied by the Administrative Agent against any or all of Loan Party’s Obligations irrespective of whether demand shall have been made and although such obligations may be unmatured, in the manner set forth
herein. Within five (5) Business Days of making any such set off, appropriation or application, the Administrative Agent agrees to notify the Borrower thereof, provided the failure to give such notice shall not affect the validity of such set
off or appropriation or application. ANY AND ALL RIGHTS TO REQUIRE THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is
to be applied to indebtedness of the Borrower to such Lender, other than the Obligations evidenced by this Agreement due to such Lender, such amount shall be applied ratably to such other indebtedness and to the Obligations evidenced by this
Agreement due to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Agreement due to such
Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations due to
such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to Obligations under this Agreement due to all of the Lenders, such Lender will make such disposition and arrangements with the other
Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations its proportionate payment as contemplated by this
Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
12.3
Right to Freeze.
The Administrative Agent and each of the Lenders shall also have the right, at its option, upon the
occurrence of any event which would entitle the Administrative Agent and each of the Lenders to set off or debit as set forth in
Section 12.2
, to freeze, block or segregate any such deposits, balances and other sums so that Borrower may
not access, control or draw upon the same.
84
12.4
Additional Rights.
The rights of the Administrative Agent, the Lenders
and each of their respective Affiliates under this
Article 12
are in addition to, and not in limitation of, other rights and remedies, including other rights of set off, which the Administrative Agent or any of the Lenders may have.
|
13.
|
THE ADMINISTRATIVE AGENT AND THE LENDERS.
|
13.1
Rights, Duties and
Immunities of the Administrative Agent.
13.1.1
Appointment of Administrative Agent.
Each of the Lenders
hereby irrevocably appoints KeyBank to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this
Section 13.1
(other than
Sections 13.1.10
, and as may be limited by
Sections 13.2.4
and
13.3.2
) are solely for the benefit of the Administrative Agent and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.
13.1.2
No Other Duties, Etc.
Anything herein to the contrary notwithstanding, neither the Arranger nor any other titled
agents shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.
13.1.3
Delegation of Duties.
The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more
sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent
may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative
Agent.
13.1.4
Exculpatory Provisions.
(a) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing (but subject to
Section 13.1.4(b)
), the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is
continuing;
85
(ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable Law; and
(iii) shall not, except
as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by
the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
(b) The Administrative Agent
shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary), or as the Administrative Agent shall believe
in good faith shall be necessary, under the circumstances as provided in
Sections 11.2
and
13.4.1
or (ii) in the absence of its own (or its officers’, directors’, employees’, agents’, attorneys in fact or
Affiliates’) gross negligence or willful misconduct.
(c) The Administrative Agent shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in
Section 5
or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
13.1.5
Reliance
by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any
electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan Advance that by its
terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is
86
satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan Advance. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
13.1.6
Notice of Default.
The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower or a Lender.
13.1.7
Lenders’ Credit Decisions.
Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges
that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
13.1.8
Administrative Agent’s Reimbursement and Indemnification.
The Lenders agree to reimburse and indemnify the
Administrative Agent, ratably in proportion to their respective Commitments, for (i) any amounts not reimbursed by the Borrower for which the Administrative Agent is entitled to reimbursement by the Borrower under this Loan Agreement or the
other Loan Documents, (ii) any other expenses incurred by the Administrative Agent on behalf of the Lenders in connection with the preparation, execution, delivery, administration, amendment, waiver and/or enforcement of this Loan Agreement and
the other Loan Documents, and (iii) any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of this Loan Agreement or the other Loan Documents or any other document delivered in connection therewith or any transaction contemplated thereby, or the enforcement of any of the terms
hereof or thereof, provided that no Lender shall be liable for any of the foregoing to the extent that they arise from the gross negligence or willful misconduct of the Administrative Agent. If any indemnity furnished to the Administrative Agent for
any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and cease, or not commence, to do the action indemnified against until such additional
indemnity is furnished.
13.1.9
Administrative Agent in its Individual Capacity.
The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “
Lender
” or
“
Lenders
” shall, unless otherwise
87
expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower, CRT or any Borrower Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor to the Lenders..
13.1.10
Successor
Administrative Agent.
The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with and,
if such appointment is prior to the occurrence and continuation of an Event of Default, with the prior approval of, the Borrower, such approval not to be unreasonably withheld or delayed, to appoint a successor, which shall be a bank with an office
in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, at the direction and with the consent of the Borrower, on behalf of the Lenders, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with
such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this
Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the
other Loan Documents, the provisions of this Section and
Section 15.9
shall continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents
and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
88
13.1.11
Administrative Agent May File Proofs of Claim.
In case of the
pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loan and
all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under
Sections 2.4
, and
15.9
) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to
distribute the same.
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under
Sections 2.4
and
15.9
.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
13.1.12
Guaranty Matters.
The Lenders irrevocably authorize the Administrative Agent, at its option and in its
discretion, to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary or an owner of a Borrowing Base Property or an indirect owner of a Borrowing Base Property Owner as a result of a transaction
permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will promptly confirm in writing the
Administrative Agent’s authority to release any Guarantor from its obligations under the Guaranty pursuant to this
Section 13.1.12
.
13.2
Respecting Loans and Payments.
13.2.1
Adjustments.
If, after the Administrative Agent has paid each Lender’s proportionate share of any payment
received or applied by the Administrative Agent in respect of the Loan and other Obligations, that payment is rescinded or must otherwise be returned or paid over by the Administrative Agent, whether pursuant to any Debtor Relief
89
Law, sharing of payments clause of any loan agreement or otherwise, such Lender shall, at the Administrative Agent’s request, promptly return its proportionate share of such payment or
application to the Administrative Agent, together with such Lender’s proportionate share of any interest or other amount required to be paid by the Administrative Agent with respect to such payment or application.
13.2.2
Setoff.
If any Lender (including the Administrative Agent), acting in its individual capacity, shall exercise any
right of setoff against a deposit balance or other account of the Borrower held by such Lender on account of the obligations of the Borrower under this Loan Agreement, such Lender shall remit to the Administrative Agent all such sums received
pursuant to the exercise of such right of setoff, and the Administrative Agent shall apply all such sums for the benefit of all of the Lenders hereunder in accordance with the terms of this Loan Agreement.
13.2.3
Distribution by the Administrative Agent.
If in the opinion of the Administrative Agent distribution of any
amount received by it in such capacity hereunder or under any of the other Loan Documents might involve any liability, it may refrain from making distribution until its right to make distribution shall have been adjudicated by a court of competent
jurisdiction or has been resolved by the mutual consent of all Lenders. In addition, the Administrative Agent may request full and complete indemnity, in form and substance satisfactory to it, prior to making any such distribution. If a court of
competent jurisdiction shall adjudge that any amount received and distributed by the Administrative Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Administrative Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over to the same in such manner and to such Persons as shall be determined by such court.
13.2.4
Removal or Replacement of a Lender.
If any Lender requests compensation under
Sections 2.6.1
or
2.6.2
, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.8
, or if any Lender is a Defaulting Lender, then in addition to,
and not in limitation of, the rights and remedies that may be available to the Borrower at law or in equity, the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by,
Section 13.3
), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a) The Administrative Agent shall be paid the assignment fee specified in
Section 13.3.2(d)
;
(b) Such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 2.3.15
) from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts);
90
(c) In the case of any such assignment resulting from a claim for compensation
under
Sections 2.6.1
or
2.6.2
or payments required to be made pursuant to
Section 2.8
, such assignment will result in a reduction in such compensation or payments thereafter; and
(d) Such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.
13.2.5
Holders.
The
Administrative Agent may deem and treat the Lender designated in the Register as the proportionate owner of such interest in the Obligations for all purposes hereof unless and until a written notice of the assignment, transfer or endorsement
thereof, as the case may be, shall have been filed with the Administrative Agent. Any request, authority or consent of any Person or entity who, at the time of making such request or giving such authority or consent, is the holder of any designated
interest in the Obligations shall be conclusive and binding on any subsequent holder, transferee or endorsee, as the case may be, of such interest in the Obligations.
13.3
Assignments by Lenders.
13.3.1
Successors and Assigns Generally.
The provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
Section 13.3.2
,
(ii) by way of participation in accordance with the provisions of
Section 13.3.4
, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of
Section 13.3.6
(and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in
Section 13.3.6
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.
13.3.2
Assignments by Lenders.
Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(a)
Minimum Amounts.
(i) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the
time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
91
(ii) in any case not described in
Section 13.3.2(a)(i)
, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met.
(b)
Proportionate Amounts.
Each partial
assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned.
(c)
Required Consents.
No consent shall be required for any assignment except to the extent required by
Section 13.3.2(a)(ii)
and, in addition:
(i) the consent of the Borrower (such consent not to be unreasonably
withheld, conditioned or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender (other than a Defaulting Lender), an Affiliate of a
Lender (other than a Defaulting Lender) or an Approved Fund; and
(ii) the consent of the Administrative Agent (such
consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender.
(d)
Assignment and Assumption.
The parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
92
(e)
No Assignment to Borrower.
No such assignment shall be made to CRT,
the Borrower or any of the Borrower’s Affiliates or Subsidiaries.
(f)
No Assignment to Natural Persons.
No
such assignment shall be made to a natural Person.
(g)
No Assignment to Defaulting Lenders.
No such assignment
shall be made to a Defaulting Lender.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to
Section 13.2.3
,
from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of
Sections 2.8
,
2.6.1
,
2.6.2
,
2.3.15
, and
15.9
with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender; provided that such
new Note shall be dated the effective date of such Assignment and Acceptance and shall be otherwise in the form of
Exhibit B
. To the extent a Lender has assigned all of its Commitment and Loans, it covenants to return any outstanding Note to
the Borrower or to provide a lost note indemnity in lieu thereof. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
13.3.3
Register.
The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at
the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the “
Register
”). The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior notice.
13.3.4
Participations.
Any
Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person or CRT or the Borrower or any of the Borrower’s or CRT’s Affiliates or
Subsidiaries) (each, a “
Participant
”) in all or a portion of such Lender’s
93
rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided
that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided
that such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 13.4.1
that affects such Participant. Subject to
Section 13.3.5
, the Borrower agrees that each Participant shall be
entitled to the benefits of
Sections 2.8
,
2.6.1
,
2.6.2
and
2.3.15
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
Section 13.3.2
. To the extent permitted
by Law, each Participant also shall be entitled to the benefits of
Section 12.2
as though it were a Lender,
provided
such Participant agrees to be subject to
Section 12.2
as though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain
a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “
Participant
Register
”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any
Commitments, Loans, or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation under any Loan Document is in registered form
under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register
as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for
maintaining a Participant Register.
13.3.5
Limitations upon Participant Rights.
A Participant shall not be entitled
to receive any greater payment under
Sections 2.8
,
2.3.15
,
2.6.1
or
2.6.2
than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written consent, provided in no instance shall the Borrower’s Obligations be increased as a result thereof. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of
Section 2.8
unless the Borrower is notified of the participation sold to such Participant and such Participant complies with
Section 2.8.5
as though it were a Lender.
94
13.3.6
Certain Pledges.
Any Lender may at any time pledge all or any
portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge to secure obligations to a Federal Reserve Bank;
provided
that no such pledge or foreclosure with respect
to any such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee for such Lender as a party hereto.
13.4
Administrative Matters.
13.4.1
Amendment, Waiver, Consent, Etc.
Except as otherwise provided herein or as to any term or provision hereof which
specifically provides for the consent or approval of the Administrative Agent, the Required Lenders and/or the Lenders, as applicable, no term or provision of this Loan Agreement or any other Loan Document may be changed, waived, discharged or
terminated, nor may any consent required or permitted by this Loan Agreement or any other Loan Document be given, unless such change, waiver, discharge, termination or consent receives the written approval of the Required Lenders;
provided
that
, no such waiver and no such amendment, waiver, supplement, modification or release shall:
(a) postpone any
date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby,
(b) amend, modify or waive any provision of this
Section 13.4
without the written consent of each Lender,
(c) reduce the principal of, or the rate of interest specified herein on, any
Loan, or (subject to clause (iv) of the proviso at the end of this
Section 13.4.1
) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
provided
,
however
, that only the consent of the Required Lenders shall be necessary to amend the definition of “
Default Rate
” or to waive any obligation of the Borrower to pay interest at the Default Rate,
(d) change the definition of “
Required Lenders
” or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender,
(e) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to
Section 11
)
without the written consent of such Lender,
(f) release or waive any guaranty of the Obligations or indemnifications
provided in the Loan Documents except to the extent the release of the Guarantor is permitted by this Agreement (in which case such release may be made by the Administrative Agent acting alone) without the written consent of each Lender;
95
(g) require or accept any Collateral for the benefit of the Lenders other than on
a pro rata basis, without the written consent of each Lender;
(h) require or accept one or more guarantees for the benefit
of the Lenders other than on a pro rata basis, without the written consent of each Lender; or
(i) change
Section 11.2
or
Section 12.2
in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
and,
provided
further
, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition
to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed
only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms
requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended
without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall
require the consent of such Defaulting Lender. Notwithstanding anything to the contrary contained herein, (x) any term of this Agreement or of any other Loan Document relating solely to the rights and obligations of the Tranche A Lenders, and
not any of the Tranche B Lenders, may be amended, and the performance or observance by Borrower or any other Loan Party of any such term may be waived with, and only with, the written consent of the Tranche A Required Lenders, provided that to the
extent such terms relate to those items set forth in Section 13.4.1(a) through (i) that require the consent of each Lender, such amendment or waiver shall require the consent of each Tranche A Lender, and (y) any term of this
Agreement or of any other Loan Document relating solely to the rights and obligations of the Tranche B Lenders, and not any of the Tranche A Lenders, may be amended, and the performance or observance by Borrower or any other Loan Party of any such
term may be waived with, and only with, the written consent of the Tranche B Required Lenders, provided that to the extent such terms relate to those items set forth in Section 13.4.1(a) through (i) that require the consent of each Lender,
such amendment or waiver shall require the consent of each Tranche B Lender.
13.4.2
Deemed Consent or Approval.
With respect to any requested amendment, waiver, consent or other action which requires the approval of the Required Lenders or all of the Lenders, as the case may be, in accordance with the terms of this Loan Agreement, or if the Administrative
Agent is required hereunder to seek, or desires to seek, the approval of the Required Lenders or all of the Lenders, as the case may be, prior to undertaking a particular action or course of conduct, the Administrative Agent in
96
each such case shall provide each Lender with written notice of any such request for amendment, waiver or consent or any other requested or proposed action or course of conduct, accompanied by
such detailed background information and explanations as may be reasonably necessary to determine whether to approve or disapprove such amendment, waiver, consent or other action or course of conduct. The Administrative Agent may (but shall not be
required to unless so requested by the Borrower) include in any such notice, printed in capital letters or boldface type, a legend substantially to the following effect:
“THIS COMMUNICATION REQUIRES IMMEDIATE RESPONSE. FAILURE TO RESPOND WITHIN TEN (10) CALENDAR DAYS FROM THE RECEIPT OF
THIS COMMUNICATION SHALL CONSTITUTE A DEEMED APPROVAL BY THE ADDRESSEE OF THE ACTION REQUESTED BY THE BORROWER OR THE COURSE OF CONDUCT PROPOSED BY THE ADMINISTRATIVE AGENT AND RECITED ABOVE”,
and if (and only if) the foregoing legend is included by the Administrative Agent in its communication, a Lender shall be deemed to have
approved or consented to such action or course of conduct for all purposes hereunder if such Lender fails to object to such action or course of conduct by written notice to the Administrative Agent within ten (10) calendar days of such
Lender’s receipt of such notice.
15.1
Notices.
(a)
Notices Generally.
Except in the case of notices and other communications expressly permitted to be given by
telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower or the Administrative Agent, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on
Schedule 15.1
; and
(ii) if to any other Lender, to the address, telecopier
number, electronic mail address or telephone number specified in its Administrative Questionnaire.
Notices and other communications sent
by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on
97
the next business day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as
provided in such subsection (b).
(b)
Electronic Communications.
Notices and other communications to a Lender
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any
Lender pursuant to
Section 2
if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall
be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor.
(c)
The Platform.
THE PLATFORM IS PROVIDED
“AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS,
IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “
Agent Parties
”) have any liability to the Borrower,
any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through
the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent
98
jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party
have any liability to the Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d)
Change of Address, Etc.
Each of the Borrower and the Administrative Agent may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower
and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number
and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender
to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s
compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that
may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities Laws.
(e)
Reliance by Administrative Agent and Lenders.
The Administrative Agent and the Lenders shall be entitled to rely and
act upon any notices (including telephonic Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form
of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
15.2
Interest Rate
Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the
“
Maximum Rate
”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the
99
interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize
any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.
15.3 [Reserved].
15.4 [Reserved].
15.5
Parties Bound.
The provisions of this Agreement and of each of the other Loan Documents shall be binding upon and
inure to the benefit of the Borrower and the Administrative Agent and each of the Lenders and their respective successors and assigns, except as otherwise prohibited by this Agreement or any of the other Loan Documents.
This Agreement is a contract by and among the Borrower, the Administrative Agent and each of the Lenders for their mutual benefit, and no
third Person shall have any right, claim or interest against either Administrative Agent, any of the Lenders or the Borrower by virtue of any provision hereof.
15.6
Governing Law; Consent to Jurisdiction; Mutual Waiver of Jury Trial.
15.6.1
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
15.6.2
SUBMISSION TO JURISDICTION.
EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED WITHIN THE FIRST DEPARTMENT OF THE NEW YORK STATE UNIFIED COURT SYSTEM AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENTS
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO
100
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
15.6.3
WAIVER OF VENUE.
EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS IN ANY COURT REFERRED TO IN
SECTION 15.6.2
. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
15.6.4
SERVICE OF PROCESS.
EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN
SECTION 15.1
. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
15.6.5
WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
15.7
Survival.
All representations and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each
Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit
Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
101
15.8
Cumulative Rights.
All of the rights of the Administrative Agent and
the Lenders hereunder and under each of the other Loan Documents and any other agreement now or hereafter executed in connection herewith or therewith, shall be cumulative and may be exercised singly, together, or in such combination as
Administrative Agent may determine in its sole good faith judgment.
15.9
Expenses; Indemnity; Damage
Waiver.
15.9.1
Costs and Expenses.
The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Syndication Agent and the Co-Documentation Agents and their respective Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, the Syndication
Agent and the Co-Documentation Agents), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all reasonable out-of-pocket expenses incurred by the Administrative Agent
or any Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.
15.9.2
Indemnification by the Borrower.
The Borrower shall indemnify the Administrative Agent (and any sub-agent
thereof), each Lender, and each Related Party of any of the foregoing Persons, (each such Person being called an “
Indemnitee
”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations
hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents (including in respect of any matters addressed in
Section 2.8
), (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any Loan Party in violation of any Environmental Legal Requirements, or any environmental liability of CRT, the Borrower or any Loan Party, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party
thereto;
provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
102
claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if
the Borrower or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
15.9.3
Reimbursement by Lenders.
To the extent that the Borrower for any reason fails to indefeasibly pay any amount
required hereunder
Sections 15.9.1
or
15.9.2
to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s Commitment Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related
Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this
Section 15.9.3
are subject to the provisions of
Section 12.2
.
15.9.4
Waiver of Consequential Damages, Etc.
To the fullest extent permitted by
applicable Law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, and the Administrative Agent and each Lender shall not assert, and hereby waives any claim against a Loan Party, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof, with the exception of any such damages claimed against the Administrative Agent or any Lender by a third party as to which the Administrative Agent and each
Lender has a right of indemnification from the Borrower under
Section 15.9.2
. No Indemnitee referred to in
Section 15.9.2
above shall be liable for any damages arising from the use by unintended recipients of any information
or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby other than for direct or actual damages resulting from a claim described in clause (x) or (y) of
Section 15.9.2
.
15.9.5
Payments.
All amounts due under this Section shall be payable not later than ten (10) Business Days after
demand therefor.
15.9.6
Survival.
The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Total Commitments and the repayment, satisfaction or discharge of all the other Obligations.
103
15.10
Regarding Consents.
Except to the extent expressly provided herein,
any and all consents to be made hereunder by the Administrative Agent, Required Lenders, or Lenders shall be in the discretion of the Party to whom consent rights are given hereunder.
15.11
Obligations Absolute.
Except to the extent prohibited by applicable law which cannot be waived, the Obligations of
Borrower and the obligations of the Loan Parties under the Loan Documents and Swap Contracts shall be joint and several, absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms of the Loan Documents and Swap
Contracts under all circumstances whatsoever, including, without limitation, the existence of any claim, set off, defense or other right which Borrower or any Loan Party may have at any time against the Administrative Agent or any of the Lenders
whether in connection with the Loan, any Swap Contract or any unrelated transaction.
15.12
Table of Contents, Title and
Headings.
Any Table of Contents, the titles and the headings of sections are not parts of this Loan Agreement or any other Loan Document and shall not be deemed to affect the meaning or construction of any of its or their provisions.
15.13
Counterparts.
This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 5.1
, this Agreement shall become effective when the Administrative
Agent and the Borrower shall have received counterparts hereof that, when taken together, bear the signatures of each party hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this Agreement.
15.14
Satisfaction of Commitment
Letter.
The Loan being made pursuant to the terms hereof and of the other Loan Documents is being made in satisfaction of Administrative Agent’s and each of the Lenders’ obligations under the Commitment Letter. The terms,
provisions and conditions of this Agreement and the other Loan Documents supersede the provisions of the Commitment Letter.
15.15
Time Of the Essence.
Time is of the essence of each provision of this Agreement and each other Loan
Document.
15.16
No Oral Change.
This Loan Agreement and each of the other Loan Documents may only be amended,
terminated, extended or otherwise modified by a writing signed by the party against which enforcement is sought (except no such writing shall be required for any party which, pursuant to a specific provision of any Loan Document, is required to be
bound by changes without such party’s assent). In no event shall any oral agreements, promises, actions, inactions, knowledge, course of conduct, course of dealings or the like be effective to amend, terminate, extend or otherwise modify this
Loan Agreement or any of the other Loan Documents.
104
15.17
Monthly Statements.
While the Administrative Agent may issue invoices
or other statements on a monthly or periodic basis (a “
Statement
”), it is expressly acknowledged and agreed that: (i) the failure of the Administrative Agent to issue any Statement on one or more occasions shall not affect the
Borrower’s obligations to make payments under the Loan Documents as and when due; (ii) the inaccuracy of any Statement shall not be binding upon Lenders and so the Borrower shall always remain obligated to pay the full amount(s) required
under the Loan Documents as and when due notwithstanding any provision to the contrary contained in any Statement; (iii) all Statements are issued for information purposes only and shall never constitute any type of offer, acceptance,
modification, or waiver of the Loan Documents or any of Lenders’ rights or remedies thereunder; and (iv) in no event shall any Statement serve as the basis for, or a component of, any course of dealing, course of conduct, or trade practice
which would modify, alter, or otherwise affect the express written terms of the Loan Documents.
15.18
No Advisory or
Fiduciary Responsibility.
In connection with all aspects of each transaction completed hereby, the Borrower and each other Loan Party acknowledges and agrees that: (i) the credit facility provided for hereunder and any related
arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are arm’s-length commercial transactions between the Borrower, each other Loan
Party and their respective Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the other hand, and the Borrower and each other Loan Party is capable of evaluating and understanding and understands and accepts the terms,
risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); and (ii) the Administrative Agent and the Arranger have not provided and
will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of the Borrower and
the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each of the Borrower and the other Loan Parties hereby waives and releases, to the fullest extent permitted by Law,
any claims that it may have against the Administrative Agent and the Arranger with respect to any breach or alleged breach of agency or fiduciary duty. The Administrative Agent, each Lender and their respective affiliates may have economic interests
that conflict with those of the Loan Parties, their stockholders and/or their affiliates.
15.19
USA PATRIOT
Act.
Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “
Act
”), it is required to obtain, verify and record information that identifies the Borrower and each other Loan Party, which information includes the name
and address of the Borrower and each other Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and each other Loan Party in accordance with the Act. The Borrower shall,
promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know
your customer” and anti-money laundering rules and regulations, including the Act.
105
15.20
Treatment of Certain Information; Confidentiality.
Each of the
Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners,
directors, officers, employees, agents, trustees, advisors and representatives to the extent such parties require such information in connection with the transactions contemplated by this Agreement (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto,
(e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this
Agreement or any Eligible Assignee invited to be a Lender pursuant to
Section 2.1.1
or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations,
(g) with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender or any
of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. In addition, each of the Administrative Agent and the Lenders may disclose the existence of this Agreement and the information about this Agreement to
service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents.
For purposes of this Section, “
Information
” means all information received from the Borrower or any Subsidiary relating to
the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary. Any
Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each of the Administrative Agent and the Lenders
acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
[The balance of this page is intentionally left blank]
106
IN WITNESS WHEREOF this Agreement has been duly executed and delivered as of the date first
written above.
|
|
|
|
|
|
|
|
|
BORROWER:
|
|
CEDAR REALTY TRUST PARTNERSHIP, L.P.
,
a Delaware limited partnership
|
|
|
|
|
|
|
|
By:
|
|
Cedar Realty Trust, Inc., its general partner
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ BRENDA J. WALKER
|
|
|
|
|
|
Name:
|
|
Brenda J. Walker
|
|
|
|
|
|
Title:
|
|
Vice President
|
[Signature page to Loan Agreement]
|
|
|
|
|
|
|
|
|
ADMINISTRATIVE
|
|
|
|
|
|
|
|
AGENT:
|
|
|
|
KEYBANK NATIONAL ASSOCIATION
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ GREGORY W. LANE
|
|
|
|
|
|
|
|
Gregory W. Lane
|
|
|
|
|
|
|
|
Vice President
|
[Signature page to Loan Agreement]
|
|
|
|
|
|
|
|
|
LENDER:
|
|
|
|
KEYBANK NATIONAL ASSOCIATION
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ GREGORY W. LANE
|
|
|
|
|
|
|
|
Gregory W. Lane
|
|
|
|
|
|
|
|
Vice President
|
[Signature page to Loan Agreement]
|
|
|
|
|
|
|
|
|
LENDER:
|
|
|
|
CAPITAL ONE, NATIONAL ASSOCIATION
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ FREDERICK H. DENECKE
|
|
|
|
|
|
Name:
|
|
Frederick H. Denecke
|
|
|
|
|
|
Title:
|
|
Senior Vice President
|
[Signature page to Loan Agreement]
|
|
|
|
|
|
|
|
|
LENDER:
|
|
|
|
MANUFACTURERS AND TRADERS TRUST COMPANY
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ PETER J. OSTROWSKI
|
|
|
|
|
|
Name:
|
|
Peter J. Ostrowski
|
|
|
|
|
|
Title:
|
|
Vice President
|
[Signature page to Loan Agreement]
|
|
|
|
|
|
|
|
|
LENDER:
|
|
|
|
REGIONS BANK
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ KYLE UPTON
|
|
|
|
|
|
Name:
|
|
Kyle Upton
|
|
|
|
|
|
Title:
|
|
Vice President
|
[Signature page to Loan Agreement]
|
|
|
|
|
|
|
|
|
LENDER:
|
|
|
|
TD BANK, N.A.
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ SCOTT T. WISDOM
|
|
|
|
|
|
Name:
|
|
Scott T. Wisdom
|
|
|
|
|
|
Title:
|
|
Vice President
|
[Signature page to Loan Agreement]
|
|
|
|
|
|
|
|
|
LENDER:
|
|
|
|
RAYMOND JAMES BANK, N.A.
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ ALEXANDER RODY
|
|
|
|
|
|
Name:
|
|
Alexander Rody
|
|
|
|
|
|
Title:
|
|
Senior Vice President
|
[Signature page to Loan Agreement]
SCHEDULE 1.1(a)
COMMITMENTS
AND
COMMITMENT PERCENTAGES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lender
|
|
Tranche A
|
|
|
Tranche B
|
|
|
Facility
|
|
|
Percentage of
Facility
|
|
|
KeyBank National Association
|
|
$
|
23,000,000
|
|
|
$
|
5,000,000
|
|
|
$
|
28,000,000
|
|
|
|
18.666666666
|
%
|
|
Capital One
|
|
$
|
3,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
28,000,000
|
|
|
|
18.666666666
|
%
|
|
M&T Bank
|
|
$
|
23,000,000
|
|
|
$
|
5,000,000
|
|
|
$
|
28,000,000
|
|
|
|
18.666666666
|
%
|
|
Regions Bank
|
|
$
|
18,000,000
|
|
|
$
|
10,000,000
|
|
|
$
|
28,000,000
|
|
|
|
18.666666666
|
%
|
|
TD Bank
|
|
$
|
3,000,000
|
|
|
$
|
25,000,000
|
|
|
$
|
28,000,000
|
|
|
|
18.666666666
|
%
|
|
Raymond James
|
|
$
|
5,000,000
|
|
|
$
|
5,000,000
|
|
|
$
|
10,000,000
|
|
|
|
6.666666666
|
%
|
|
Total
|
|
$
|
75,000,000
|
|
|
$
|
75,000,000
|
|
|
$
|
150,000,000
|
|
|
|
100.000000000
|
%
|
SCHEDULE 1.1(a) - 1
SCHEDULE 4
AUTHORIZED OFFICERS
|
1.
|
Bruce J. Schanzer, Chief Executive Officer of Cedar Realty Trust, Inc.
|
|
2.
|
Brenda J. Walker, Chief Operating Officer of Cedar Realty Trust, Inc.
|
|
3.
|
Philip R. Mays, Chief Financial Officer of Cedar Realty Trust, Inc.
|
|
4.
|
Gaspare J. Saitta, Chief Accounting Officer of Cedar Realty Trust, Inc.
|
SCHEDULE 6.4
OWNERSHIP INTERESTS AND TAXPAYER IDENTIFICATION NUMBERS OF LOAN PARTIES
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party
|
|
State of
Organization
|
|
Partners/Members
|
|
Tax
Identification
Number
|
|
Borrowing
Base
Property
Owner
|
|
Prop
Ref.
No
|
|
Cedar Realty Trust Partnership, L.P.
|
|
Delaware
|
|
N/A
|
|
11-3440066
|
|
No
|
|
|
|
|
|
|
|
|
|
|
Cedar Realty Trust, Inc.
|
|
Maryland
|
|
N/A
|
|
42-1241468
|
|
No
|
|
|
|
|
|
|
|
|
|
|
Cedar-South Philadelphia I, LLC
|
|
Delaware
|
|
Cedar-South Philadelphia II, LLC (100%)
|
|
90-0082050
|
|
Yes
|
|
1
|
|
|
|
|
|
|
|
|
Cedar-South Philadelphia II, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
90-0082060
|
|
No
|
|
1
|
|
|
|
|
|
|
|
|
Cedar-Riverview LP
|
|
Pennsylvania
|
|
Cedar-Riverview LLC (1% of common interests; general partner); CSC-Riverview LLC (99% of common interests; limited partner); Firehouse Realty Corp. (preferred limited partner); Reed Development Associates, Inc. (preferred limited
partner); South River View Plaza, Inc. (preferred limited partner); River View Development Corp. (preferred limited partner); Riverview Commons, Inc. (preferred limited partner)
|
|
20-0422200
|
|
Yes
|
|
2
|
SCHEDULE 6.4 -
1
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party
|
|
State of
Organization
|
|
Partners/Members
|
|
Tax
Identification
Number
|
|
Borrowing
Base
Property
Owner
|
|
Prop
Ref.
No
|
|
Cedar-Riverview LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-0151534
|
|
No
|
|
2
|
|
|
|
|
|
|
|
|
CSC-Riverview LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-0151125
|
|
No
|
|
2
|
|
|
|
|
|
|
|
|
Cedar Lender LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-0447171
|
|
No
|
|
2
|
|
|
|
|
|
|
|
|
Cedar Dubois, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-0768567
|
|
Yes
|
|
3
|
|
|
|
|
|
|
|
|
Cedar Brickyard, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-2011661
|
|
Yes
|
|
4
|
|
|
|
|
|
|
|
|
Cedar Brickyard II, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
27-0844498
|
|
Yes
|
|
4
|
|
|
|
|
|
|
|
|
Cedar St. James, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-2311739
|
|
Yes
|
|
5
|
|
|
|
|
|
|
|
|
Cedar Kenley Village, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-2311870
|
|
Yes
|
|
6
|
|
|
|
|
|
|
|
|
Cedar-Valley Plaza, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
42-1596164
|
|
Yes
|
|
7
|
|
|
|
|
|
|
|
|
Cedar-Glen Allen UK, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-3797757
|
|
Yes
|
|
8
|
|
|
|
|
|
|
|
|
Cedar-Fredericksburg UK, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-3797657
|
|
Yes
|
|
9
|
|
|
|
|
|
|
|
|
Cedar-Revere LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-3528504
|
|
Yes
|
|
10
|
SCHEDULE 6.4 -
2
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party
|
|
State of
Organization
|
|
Partners/Members
|
|
Tax
Identification
Number
|
|
Borrowing
Base
Property
Owner
|
|
Prop
Ref.
No
|
|
Cedar-Palmyra, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-3897470
|
|
Yes
|
|
13
|
|
|
|
|
|
|
|
|
Cedar-Annie Land, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-5412150
|
|
Yes
|
|
15
|
|
|
|
|
|
|
|
|
Cedar-Fairview Commons, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8241755
|
|
Yes
|
|
17
|
|
|
|
|
|
|
|
|
Cedar-Norwood, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-5610606
|
|
Yes
|
|
18
|
|
|
|
|
|
|
|
|
Cedar-Metro Square II, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
26-3478262
|
|
Yes
|
|
19
|
|
|
|
|
|
|
|
|
Greentree Road L.L.C. 1
|
|
Delaware
|
|
Greentree Road L.L.C. 2 (100%)
|
|
11-3620398
|
|
Yes
|
|
22
|
|
|
|
|
|
|
|
|
Greentree Road L.L.C. 2
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
11-3620395
|
|
No
|
|
22
|
|
|
|
|
|
|
|
|
Cedar-Bristol, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8328145
|
|
Yes
|
|
23
|
|
|
|
|
|
|
|
|
Cedar-Circle, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
26-0531641
|
|
Yes
|
|
24
|
|
|
|
|
|
|
|
|
Hamilton FC Associates, L.P.
|
|
Pennsylvania
|
|
Cedar-Hamilton, LLC (60%) and
Hamilton FC
General, LLC (0.01%) and Various Other Individuals (39.99%)
|
|
20-8783810
|
|
Yes
|
|
26
|
|
|
|
|
|
|
|
|
Cedar-Hamilton, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
26-2475771
|
|
No
|
|
26
|
|
|
|
|
|
|
|
|
Cedar-Lake Raystown, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-1158059
|
|
Yes
|
|
27
|
SCHEDULE 6.4 -
3
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party
|
|
State of
Organization
|
|
Partners/Members
|
|
Tax
Identification
Number
|
|
Borrowing
Base
Property
Owner
|
|
Prop
Ref.
No
|
|
Cedar-PC Plaza, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
26-1293357
|
|
Yes
|
|
28
|
|
|
|
|
|
|
|
|
Cedar-Trexler Plaza 2, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-5065081
|
|
Yes
|
|
30
|
|
|
|
|
|
|
|
|
Cedar-Trexler Plaza 3, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-5220380
|
|
Yes
|
|
30
|
|
|
|
|
|
|
|
|
Cedar-Campbelltown, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
26-1675368
|
|
Yes
|
|
31
|
|
|
|
|
|
|
|
|
Cedar-Carll’s Corner
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
26-1286374
|
|
Yes
|
|
32
|
|
|
|
|
|
|
|
|
Cedar Huntingdon, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-1157929
|
|
Yes
|
|
33
|
|
|
|
|
|
|
|
|
Washington Center L.L.C. 1
|
|
Delaware
|
|
Washington Center L.L.C. 2 (100%)
|
|
11-3620386
|
|
Yes
|
|
34
|
|
|
|
|
|
|
|
|
Washington Center L.L.C. 2
|
|
Delaware
|
|
Cedar Center Holdings L.L.C. 3 (100%)
|
|
11-3620385
|
|
No
|
|
34
|
|
|
|
|
|
|
|
|
Cedar Center Holdings L.L.C. 3
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
11-3632594
|
|
No
|
|
34
|
|
|
|
|
|
|
|
|
Academy Plaza L.L.C. 1
|
|
Delaware
|
|
Academy Plaza L.L.C. 2 (100%)
|
|
11-3620380
|
|
Yes
|
|
35
|
|
|
|
|
|
|
|
|
Academy Plaza L.L.C. 2
|
|
Delaware
|
|
Cedar Center Holdings L.L.C. 3 (100%)
|
|
11-3620382
|
|
No
|
|
35
|
|
|
|
|
|
|
|
|
Cedar Center Holdings L.L.C. 3
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
11-3632594
|
|
No
|
|
35
|
|
|
|
|
|
|
|
|
Port Richmond L.L.C. 1
|
|
Delaware
|
|
Port Richmond L.L.C. 2 (100%)
|
|
11-3620392
|
|
Yes
|
|
36
|
SCHEDULE 6.4 -
4
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party
|
|
State of
Organization
|
|
Partners/Members
|
|
Tax
Identification
Number
|
|
Borrowing
Base
Property
Owner
|
|
Prop
Ref.
No
|
|
Port Richmond L.L.C. 2
|
|
Delaware
|
|
Cedar Center Holdings L.L.C. 3 (100%)
|
|
11-3620390
|
|
No
|
|
36
|
|
|
|
|
|
|
|
|
Cedar Center Holdings L.L.C. 3
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
11-3632594
|
|
No
|
|
36
|
|
|
|
|
|
|
|
|
Cedar Carbondale, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-0927694
|
|
Yes
|
|
37
|
|
|
|
|
|
|
|
|
Virginia Kempsville, LLC
|
|
Virginia
|
|
Cedar Realty Trust Partnership, L.P. and Cedar-Second Member LLC
|
|
25-1823129
|
|
Yes
|
|
38
|
|
|
|
|
|
|
|
|
Cedar-Second Member LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8845411
|
|
No
|
|
38
|
|
|
|
|
|
|
|
|
Virginia General Booth, LLC
|
|
Virginia
|
|
Cedar Realty Trust Partnership, L.P. and Cedar-Second Member LLC
|
|
25-1823132
|
|
Yes
|
|
39
|
|
|
|
|
|
|
|
|
Cedar-Second Member LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8845411
|
|
No
|
|
39
|
|
|
|
|
|
|
|
|
Fairview Plaza Associates, L.P.
|
|
Delaware
|
|
CIF-Fairview Plaza Associates, LLC (General Partner) (1%) and Fairport Associates, L.P. (Limited Partner) (99%)
|
|
59-3763387
|
|
Yes
|
|
40
|
|
|
|
|
|
|
|
|
CIF-Fairview Plaza Associates, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
59-3763378
|
|
No
|
|
40
|
|
|
|
|
|
|
|
|
Fairport Associates, L.P.
|
|
Delaware
|
|
CIF-Fairport Associates, LLC (General Partner) and Cedar-Second Member LLC (Limited Partner)
|
|
59-3763393
|
|
No
|
|
40
|
SCHEDULE 6.4 -
5
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party
|
|
State of
Organization
|
|
Partners/Members
|
|
Tax
Identification
Number
|
|
Borrowing
Base
Property
Owner
|
|
Prop
Ref.
No
|
|
CIF Fairport Associates, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
59-3763400
|
|
No
|
|
40
|
|
|
|
|
|
|
|
|
Cedar-Second Member LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8845411
|
|
No
|
|
40
|
|
|
|
|
|
|
|
|
Fort Washington Fitness, L.P.
|
|
Delaware
|
|
Cedar-Fort Washington, LLC (General Partner) and Cedar-Second Member LLC (Limited Partner)
|
|
13-4227049
|
|
Yes
|
|
41
|
|
|
|
|
|
|
|
|
Cedar-Fort Washington, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
54-2074245
|
|
No
|
|
41
|
|
|
|
|
|
|
|
|
Cedar-Second Member LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8845411
|
|
No
|
|
41
|
|
|
|
|
|
|
|
|
Newport Plaza Associates, L.P.
|
|
Delaware
|
|
CIF-Newport Plaza Associates, LLC (General Partner) (1%) and Fairport Associates, L.P. (Limited Partner) (99%)
|
|
56-2312995
|
|
Yes
|
|
42
|
|
|
|
|
|
|
|
|
CIF-Newport Plaza Associates, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
59-3770320
|
|
No
|
|
42
|
|
|
|
|
|
|
|
|
Fairport Associates, L.P.
|
|
Delaware
|
|
CIF-Fairport Associates, LLC (General Partner) and Cedar-Second Member LLC (Limited Partner)
|
|
59-3763393
|
|
No
|
|
42
|
|
|
|
|
|
|
|
|
CIF Fairport Associates, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
59-3763400
|
|
No
|
|
42
|
|
|
|
|
|
|
|
|
Cedar-Second Member LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8845411
|
|
No
|
|
42
|
SCHEDULE 6.4 -
6
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party
|
|
State of
Organization
|
|
Partners/Members
|
|
Tax
Identification
Number
|
|
Borrowing
Base
Property
Owner
|
|
Prop
Ref.
No
|
|
Virginia Little Creek, LLC
|
|
Virginia
|
|
Cedar Realty Trust Partnership, L.P. and Cedar-Second Member LLC
|
|
25-1823131
|
|
Yes
|
|
43
|
|
|
|
|
|
|
|
|
Cedar-Second Member LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8845411
|
|
No
|
|
43
|
|
|
|
|
|
|
|
|
Virginia Suffolk, LLC
|
|
Virginia
|
|
Cedar Realty Trust Partnership, L.P. and Cedar-Second Member LLC
|
|
20-1823128
|
|
Yes
|
|
44
|
|
|
|
|
|
|
|
|
Cedar-Second Member LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8845411
|
|
No
|
|
44
|
|
|
|
|
|
|
|
|
Halifax Plaza Associates, L.P.
|
|
Delaware
|
|
CIF-Halifax Plaza Associates, LLC (General Partner) (1%) and Fairport Associates, L.P. (Limited Partner) (99%)
|
|
56-2312992
|
|
Yes
|
|
45
|
|
|
|
|
|
|
|
|
CIF-Halifax Plaza Associates, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
59-3770319
|
|
No
|
|
45
|
|
|
|
|
|
|
|
|
Fairport Associates, L.P.
|
|
Delaware
|
|
CIF-Fairport Associates, LLC (General Partner) and Cedar-Second Member LLC (Limited Partner)
|
|
59-3763393
|
|
No
|
|
45
|
|
|
|
|
|
|
|
|
CIF Fairport Associates, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
59-3763400
|
|
No
|
|
45
|
|
|
|
|
|
|
|
|
Cedar-Second Member LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8845411
|
|
No
|
|
45
|
SCHEDULE 6.4 -
7
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party
|
|
State of
Organization
|
|
Partners/Members
|
|
Tax
Identification
Number
|
|
Borrowing
Base
Property
Owner
|
|
Prop
Ref.
No
|
|
Virginia Smithfield, LLC
|
|
Virginia
|
|
Cedar Realty Trust Partnership, L.P. and Cedar-Second Member LLC
|
|
25-1823130
|
|
Yes
|
|
46
|
|
|
|
|
|
|
|
|
Cedar-Second Member LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
20-8845411
|
|
No
|
|
46
|
|
|
|
|
|
|
|
|
Cedar-Timpany, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
26-1286225
|
|
Yes
|
|
47
|
|
|
|
|
|
|
|
|
CF Pottsgrove Associates, L.P.
|
|
Pennsylvania
|
|
Cedar-Pottsgrove General, LLC (0.01%) and Cedar-Pottsgrove, LLC (99.9%)
|
|
20-8744143
|
|
Yes
|
|
48
|
|
|
|
|
|
|
|
|
Cedar-Pottsgrove General, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
46-4043688
|
|
No
|
|
48
|
|
|
|
|
|
|
|
|
Cedar-Pottsgrove, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
26-2647585
|
|
No
|
|
48
|
|
|
|
|
|
|
|
|
Cedar-Bethel, LLC
|
|
Delaware
|
|
Cedar Realty Trust Partnership, L.P. (100%)
|
|
46-4039486
|
|
Yes
|
|
49
|
SCHEDULE 6.4 -
8
SCHEDULE 6.14.2
BORROWING BASE PROPERTIES
|
|
|
|
|
|
|
|
|
Legal Name of Loan Property/Property Owner
|
|
Borrowing Base Property/Purchase Options
|
|
Fee Simple or Leasehold Estate
|
|
Prop. Ref. No.
|
|
Cedar-South Philadelphia I, LLC
|
|
South Philadelphia Shopping Plaza
Philadelphia,
Pennsylvania
|
|
Leasehold
|
|
1
|
|
|
|
|
|
|
Cedar-Riverview LP
|
|
Riverview Shopping Center
Philadelphia,
Pennsylvania
|
|
Fee Simple (Parking is Leasehold)
|
|
2
|
|
|
|
|
|
|
Cedar Dubois, LLC
|
|
Dubois Commons Shopping Center
Sandy,
Pennsylvania
|
|
Fee Simple
|
|
3
|
|
|
|
|
|
|
Cedar Brickyard, LLC
Cedar Brickyard II,
LLC
|
|
Brickyard Shopping Center
Berlin,
Connecticut
|
|
Fee Simple
|
|
4
|
|
|
|
|
|
|
Cedar St. James, LLC
|
|
St. James Shopping Center,
Hagerstown,
Maryland
|
|
Fee Simple
|
|
5
|
|
|
|
|
|
|
Cedar Kenley Village, LLC
|
|
Kenley Village Shopping Center,
Hagerstown,
Maryland
|
|
Fee Simple
|
|
6
|
|
|
|
|
|
|
Cedar-Valley Plaza, LLC
|
|
Valley Plaza Shopping Center,
Hagerstown,
Maryland
|
|
Fee Simple
|
|
7
|
|
|
|
|
|
|
Cedar-Glen Allen UK, LLC
|
|
Ukrop’s Shopping Center,
Glen Allen,
Virginia
Ukrop’s Super Markets, Inc. has a purchase option.
|
|
Fee Simple
|
|
8
|
|
|
|
|
|
|
Cedar-Fredericksburg UK, LLC
|
|
Ukrop’s Shopping Center,
Fredericksburg,
Virginia
Ukrop’s Super Markets, Inc. has a purchase option.
|
|
Fee Simple
|
|
9
|
|
|
|
|
|
|
Cedar-Revere LLC
|
|
Unit 2 of The Shops at Suffolk Downs Condominium, Revere, Massachusetts
The Stop & Shop Supermarket Company LLC has a purchase option.
|
|
Fee Simple
|
|
10
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Property/Property Owner
|
|
Borrowing Base Property/Purchase Options
|
|
Fee Simple or Leasehold Estate
|
|
Prop. Ref. No.
|
|
Cedar-Palmyra, LLC
|
|
Palmyra Shopping Center
Palmyra,
Pennsylvania
|
|
Fee Simple
|
|
13
|
|
|
|
|
|
|
Cedar-Annie Land, LLC
|
|
Annie Land Plaza
Lovington, Virginia
|
|
Fee Simple
|
|
15
|
|
|
|
|
|
|
Cedar-Fairview Commons, LLC
|
|
Fairview Commons
Fairview Township,
Pennsylvania
|
|
Fee Simple
|
|
17
|
|
|
|
|
|
|
Cedar-Norwood, LLC
|
|
Hannaford Plaza
Norwood, Massachusetts
|
|
Fee Simple
|
|
18
|
|
|
|
|
|
|
Cedar-Metro Square II, LLC
|
|
Metro Square at Owings Mills, Owings Mills, Maryland
|
|
Fee Simple
|
|
19
|
|
|
|
|
|
|
Greentree Road L.L.C. 1
|
|
Washington Center Shops, Washington, New Jersey
|
|
Fee Simple
|
|
22
|
|
|
|
|
|
|
Cedar-Bristol, LLC
|
|
Oakland Commons, Bristol, Connecticut
|
|
Fee Simple
|
|
23
|
|
|
|
|
|
|
Cedar-Circle, LLC
|
|
Circle Plaza, Shamokin Dam Borough, Pennsylvania
|
|
Fee Simple
|
|
24
|
|
|
|
|
|
|
Hamilton FC Associates, L.P.
|
|
Crossroads II Shopping Center, Dunmore, PA
|
|
Fee Simple
|
|
26
|
|
|
|
|
|
|
Cedar-Lake Raystown, LLC
|
|
Lake Raystown Shopping Center, Smithfield Township, PA
|
|
Fee Simple
|
|
27
|
|
|
|
|
|
|
Cedar-PC Plaza, LLC
|
|
Price Chopper Plaza, Webster, MA
|
|
Fee Simple
|
|
28
|
|
|
|
|
|
|
Cedar-Trexler Plaza 2, LLC and Cedar-Trexler Plaza 3, LLC
|
|
Trexler Plaza Shopping Center, Lower and Upper Macungie Townships, PA
|
|
Fee Simple
|
|
30
|
|
|
|
|
|
|
Cedar-Campbelltown, LLC
|
|
Northside Commons Shopping Center, South Londonderry Township, PA
|
|
Fee Simple
|
|
31
|
|
|
|
|
|
|
Cedar-Carll’s Corner
|
|
Carll’s Corner, 15 Cornwell Drive, Bridgeton, NJ
|
|
Fee Simple
|
|
32
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Property/Property Owner
|
|
Borrowing Base Property/Purchase Options
|
|
Fee Simple or Leasehold Estate
|
|
Prop. Ref. No.
|
|
Cedar Huntingdon, LLC
|
|
Unites 1, 3, 4 and 5 in the Huntingdon Plaza Condominium, Smithfield Township, PA
|
|
Fee Simple
|
|
33
|
|
|
|
|
|
|
Washington Center L.L.C. 1
|
|
Washington Center, 415 Egg Harbor Road, Sewell, NJ
|
|
Fee Simple
|
|
34
|
|
|
|
|
|
|
Academy Plaza L.L.C. 1
|
|
Academy Plaza, 3200-3296 Red Lion Road, Philadelphia, PA
|
|
Fee Simple
|
|
35
|
|
|
|
|
|
|
Port Richmond L.L.C. 1
|
|
Port Richmond, 2401-2499 Aramingo Ave., Philadelphia, PA
|
|
Fee Simple
|
|
36
|
|
|
|
|
|
|
Cedar Carbondale, LLC
|
|
Carbondale Plaza, 95 Brooklyn Street, Carbondale, PA
|
|
Fee Simple
|
|
37
|
|
|
|
|
|
|
Virginia Kempsville, LLC
|
|
Kempsville Crossing, 1830 Kempsville Rd., Virginia Beach, VA
|
|
Fee Simple
|
|
38
|
|
|
|
|
|
|
Virginia General Booth, LLC
|
|
General Booth Shopping Center, 1615 General Booth Blvd., Virginia Beach, VA
|
|
Fee Simple
|
|
39
|
|
|
|
|
|
|
Fairview Plaza Associates, L.P.
|
|
Fairview Plaza, 120-132 Old York Rd., New Cumberland, PA
|
|
Fee Simple
|
|
40
|
|
|
|
|
|
|
Fort Washington Fitness, L.P.
|
|
LA Fitness Facility, 1175 Virginia Rd., Fort Washington, PA
|
|
Fee Simple
|
|
41
|
|
|
|
|
|
|
Newport Plaza Associates, L.P.
|
|
Newport Plaza, 2-18 Newport Plaza, Newport, PA
|
|
Fee Simple
|
|
42
|
|
|
|
|
|
|
Virginia Little Creek, LLC
|
|
Virginia Little Creek, 230 East Little Creek Rd., Norfolk, VA
|
|
Fee Simple
|
|
43
|
|
|
|
|
|
|
Virginia Suffolk, LLC
|
|
Suffolk Plaza, 1401 N. Main St., Suffolk, VA
|
|
Fee Simple
|
|
44
|
|
|
|
|
|
|
Halifax Plaza Associates, L.P.
|
|
Halifax Plaza, 3761-3777 Peters Mountain Rd., Halifax, PA
|
|
Fee Simple
|
|
45
|
|
|
|
|
|
|
Virginia Smithfield, LLC
|
|
Smithfield Plaza, Smithfield, VA
|
|
Fee Simple
|
|
46
|
|
|
|
|
|
|
Cedar-Timpany, LLC
|
|
Timpany Plaza, 434 Timpany Blvd, Gardner, MA
|
|
Fee Simple
|
|
47
|
|
|
|
|
|
|
CF Pottsgrove Associates, L.P.
|
|
Upland Square, Route 100 and Upland Square Drive, Pottstown, PA
|
|
Fee Simple
|
|
48
|
|
|
|
|
|
|
Cedar-Bethel, LLC
|
|
Big Y Shopping Center, Stony Hill Road (Route 6) and Old Hawleyville Road, Bethel, CT
|
|
Fee Simple
|
|
49
|
SCHEDULE 6.14.3
ENVIRONMENTAL REPORTS
|
|
|
|
|
|
|
Legal Name of Loan Party/Property
Owner
|
|
Environmental Report
|
|
Prop. Ref. No.
|
|
Cedar-South Philadelphia I, LLC
|
|
Phase I Environmental Site Assessment, South Philadelphia Shopping Plaza, 24
th
Street, and Passyunk Avenue, South Philadelphia, Pennsylvania 19145, prepared by EMG, dated
January 11, 2012
|
|
1
|
|
|
|
|
|
Cedar-Riverview LP
|
|
Phase I Environmental Site Assessment, Riverview Plaza, 1100-1400 South Christopher Columbus Boulevard and 1401 South Water Street, Philadelphia, Pennsylvania 19147, prepared by IVI Assessment Services, Inc., dated
December 19, 2011
|
|
2
|
|
|
|
|
|
Cedar Dubois, LLC
|
|
Phase I Environmental Site Assessment, Commons at DuBois Site, 118-324 Commons Drive, Sandy Township, Clearfield County, Pennsylvania, prepared by BL Companies Pennsylvania, Inc., dated December 21, 2011
|
|
3
|
|
|
|
|
|
Cedar Brickyard, LLC
Cedar Brickyard II, LLC
|
|
Phase I Environmental Site Assessment, Brickyard Plaza Shopping Center, 129 & 225-295 Berlin Turnpike, Town of Berlin, Hartford County, Connecticut, prepared by BL Companies Pennsylvania, Inc., dated December 21,
2011
|
|
4
|
|
|
|
|
|
Cedar St. James, LLC
|
|
Phase I Environmental Assessment Report, Saint James Square, 18352 College Road, Hagerstown, Washington County, Maryland, prepared by Civil & Environmental Consultants, Inc., dated December 19, 2011
|
|
5
|
|
|
|
|
|
Cedar Kenley Village, LLC
|
|
Phase I Environmental Site Assessment Report, Kenley Village Shopping Center, 761 East Wilson Boulevard, Hagerstown, Washington County, Maryland, prepared by Civil & Environmental Consultants, Inc., dated December 19,
2011
|
|
6
|
|
|
|
|
|
Cedar-Valley Plaza, LLC
|
|
Phase I Environmental Site Assessment, Valley Plaza Shopping Center, 1701 to 1729 Massey Boulevard, Hagerstown, Washington County, Maryland 31525, prepared by Eckland Consultants Inc., dated January 12, 2012
|
|
7
|
|
|
|
|
|
Cedar-Glen Allen UK, LLC
|
|
Phase I Environmental Site Assessment Report, Martin’s Food & Drugstore, 10150 Brook Road, Glen Allen, Virginia, prepared by ECS Mid-Atlantic, LLC, dated December 19, 2011
|
|
8
|
SCHEDULE 6.14.3 -
1
|
|
|
|
|
|
|
Cedar-Fredericksburg UK, LLC
|
|
Phase I Environmental Site Assessment Report, Former Ukrop’s Grocery Store, 4503 Plank Road, Fredericksburg, Virginia 22407, prepared by ECS Mid-Atlantic, LLC, dated December 23, 2011
|
|
9
|
|
|
|
|
|
Cedar-Revere LLC
|
|
Draft Phase I Environmental Site Assessment, The Shops and Suffolk Downs, Furlong Drive, Revere, Massachusetts, prepared by Sanborn, Head
& Associates, Inc., dated December 16, 2011
Phase I Environmental Site
Assessment, The Shops and Suffolk Downs, Furlong Drive, Revere, Massachusetts, prepared by Sanborn, Head & Associates, Inc., dated February 2010
|
|
10
|
|
|
|
|
|
Cedar-Palmyra, LLC
|
|
Phase I Environmental Site Assessment, Palmyra Shopping Center Site, 901 East Main Street, Borough of Palmyra, Lebanon County, Pennsylvania, prepared by BL Companies Pennsylvania, Inc., dated December 21, 2011
|
|
13
|
|
|
|
|
|
Cedar-Annie Land, LLC
|
|
Phase I Environmental Site Assessment, Annie Land, 85 Callohill Drive, Lovingston, Virginia 22949, prepared by EMG, dated January 11, 2012
|
|
15
|
|
|
|
|
|
Cedar-Fairview Commons, LLC
|
|
Phase I Environmental Site Assessment, Fairview Commons Shopping Center, 110 Old York Road, Fairview Township, York County, Pennsylvania, prepared by Mountain Research, LLC, dated December 2011
|
|
17
|
|
|
|
|
|
Cedar-Norwood, LLC
|
|
Phase I Environmental Site Assessment, Hannaford Plaza Site, 418-444 Walpole Street, Town of Norwood, Norfolk County, Massachusetts,
prepared by BL Companies Pennsylvania, Inc., dated December 21, 2011
Phase II
Environmental Site Assessment, Hannaford Plaza 418-444 Walpole Street, Norwood, Massachusetts, prepared by Professional Service Industries, Inc., dated September 25, 2006
|
|
18
|
|
|
|
|
|
Cedar-Metro Square II, LLC
|
|
Phase I Environmental Site Assessment Report, Metro Square at Owings Mills, 11130 Reisterstown Road, Owings Mills, Baltimore County, Maryland, prepared by Civil & Environmental Consultants, Inc., dated December 19,
2011
|
|
19
|
|
|
|
|
|
Greentree Road L.L.C. 1
|
|
Phase I Environmental Site Assessment, 304 Greentree Road, Block 193, Lot 5, Washington Township, Gloucester County, New Jersey, prepared by Brinkerhoff Environmental Services, Inc., December 20, 2011
|
|
22
|
SCHEDULE 6.14.3 -
2
|
|
|
|
|
|
|
Cedar-Bristol, LLC
|
|
Phase I Environmental Site Assessment, Shaws Supermarket, 325 Oakland Street, Bristol, Connecticut 06010, prepared by EBI Consulting, dated December 20, 2011
|
|
23
|
|
|
|
|
|
Cedar-Circle, LLC
|
|
Phase I Environmental Site Assessment Report, Circle Plaza, 404 N. Susquehanna Trail, Shamokin Dam, Snyder County, Pennsylvania, prepared by Civil & Environmental Consultants, Inc., December 15, 2011.
|
|
24
|
|
|
|
|
|
Hamilton FC Associates, L.P.
|
|
Phase I Environmental Site Assessment, Shoppes at Crossroads Site, 3560 and 3578 Route 611, Townships of Stroud and Hamilton, Monroe County, Pennsylvania, prepared by BL Companies Pennsylvania, Inc., dated December 22,
2011
|
|
26
|
|
|
|
|
|
Cedar-Lake Raystown, LLC
|
|
Phase I Environmental Site Assessment Report, Lake Raystown Shopping Center, Route 22 and 4
th
Street, Huntingdon, Huntingdon County, Pennsylvania, prepared by Civil &
Environmental Consultants, Inc., dated December 16, 2011
|
|
27
|
|
|
|
|
|
Cedar-PC Plaza, LLC
|
|
Phase I Environmental Site Assessment Report, Price Chopper Plaza, 112, 118 & 120 E Main Street, Webster, Worcester County,
Massachusetts, prepared by Civil & Environmental Consultants, Inc., dated December 18, 2011
Phase I Environmental Site Assessment Report, Price Chopper Plaza, East Main Street, Webster, Worcester County, Massachusetts, prepared by Civil &
Environmental Consultants, Inc., dated September 2009
|
|
28
|
|
|
|
|
|
Cedar-Trexler Plaza 2, LLC and Cedar-Trexler Plaza 3, LLC
|
|
Phase I Environmental Site Assessment, Trexlertown Plaza Shopping Center, 7150 Hamilton Boulevard, Trexlertown, Pennsylvania, 18087,
prepared by IVI Assessment Services, Inc., dated December 19, 2011
Report of
Phase I Environmental Site Assessment, Proposed Tractor Supply Company, 7450 Hamilton Boulevard, Trexlertown, Pennsylvania 18087, prepared by Professional Service Industries, Inc., dated April 22, 2011
Report of Phase I Environmental Site Assessment, Automobile Dealership, 7450 Hamilton
Boulevard, Trexlertown, Pennsylvania 18087, prepared by Professional Service Industries, Inc., dated December 3, 2010
|
|
30
|
SCHEDULE 6.14.3 -
3
|
|
|
|
|
|
|
|
|
Phase I Environmental Site Assessment Report, Mobile Home Park, 7450 Hamilton Boulevard, Trexlertown, Pennsylvania 18087, prepared by
Professional Service Industries, Inc., dated January 18, 2008
Report of Phase I
Environmental Site Assessment, Automobile Dealership, 7450 Hamilton Boulevard, Trexlertown, Pennsylvania 18087, prepared by Professional Service Industries, Inc., dated February 26, 2007
|
|
|
|
|
|
|
|
Cedar-Campbelltown, LLC
|
|
Phase I Environmental Site Assessment, Northside Commons Shopping Center Site, 103-112 Northside Drive, South Londonberry Township, Lebanon County, Pennsylvania, prepared by BL Companies Pennsylvania, Inc., dated
December 21, 2011
|
|
31
|
|
|
|
|
|
Cedar-Carll’s Corner
|
|
Phase I Environmental Site Assessment, Carll’s Corner Shopping Center Site, 9-47 Cornwell Drive and 1070 North Pearl Street, Upper Deerfield Township, Cumberland County, New Jersey, prepared by BL Companies Pennsylvania,
Inc., dated May 30, 2012.
|
|
32
|
|
|
|
|
|
Cedar Huntingdon, LLC
|
|
Phase I Environmental Site Assessment, Huntingdon Shopping Center Site, U.S. Route 22, Smithfield Township, Huntingdon County, Pennsylvania, prepared by BL Companies Pennsylvania, Inc., dated March 5, 2010
|
|
33
|
|
|
|
|
|
Washington Center L.L.C. 1
|
|
Phase I Environmental Site Assessment Report, Washington Center, 415 Egg Harbor Road, Sewell, New Jersey 08080, prepared by Professional
Service Industries, Inc., dated September 12, 2012
Phase I Environmental Site
Assessment Report, Washington Center, 415 Egg Harbor Road, Sewell, New Jersey 08080, prepared by LandAmerica Assessment Corporation, dated October 17, 2007
Phase I Environmental Site Assessment (Update), Washington Centre Shoppes, 415 Egg Harbor Road, Block 193, Lots 5.01 and 6, Sewell Gloucester County, New
Jersey, prepared by Brinkerhoff Environmental Services, Inc., dated July 11, 2001
|
|
34
|
SCHEDULE 6.14.3 -
4
|
|
|
|
|
|
|
Academy Plaza L.L.C. 1
|
|
Phase I Environmental Site Assessment, Academy Plaza, 3200-3280 Red Lion Road, Philadelphia, Philadelphia County, Pennsylvania, prepared by Brinkerhoff Environmental Services, Inc., dated July 12, 2001
|
|
35
|
|
|
|
|
|
Port Richmond L.L.C. 1
|
|
Phase I Environmental Site Assessment Report, 2401-2499 Aramingo Avenue, Philadelphia Pennsylvania 19125, prepared by Professional Service
Industries, Inc., dated February 25, 2013
Report of Phase I Environmental Site
Assessment, Port Richmond Village Shopping Center, 2401 Aramingo Avenue, Philadelphia Pennsylvania 19125, prepared by Professional Service Industries, Inc., dated June 3, 2008
Phase I Environmental Site Assessment (Phase I/II ESA Addendum), Port Richmond Village
Shopping Center, 2403-2499 Aramingo Avenue, Philadelphia, Philadelphia County, Pennsylvania, prepared by Brinkerhoff Environmental Services, Inc., dated July 11, 2001
Phase II Environmental Site Assessment, Port Richmond Village Shopping Center, 2403-2499 Aramingo Avenue, Philadelphia, Pennsylvania, prepared by Dames &
Moore, dated January 17, 1996
|
|
36
|
|
|
|
|
|
Cedar Carbondale, LLC
|
|
Phase I Environmental Site Assessment, Carbondale Shipping Plaza, 95 Brooklyn Avenue, Carbondale, Pennsylvania, 18407, prepared by EMG, dated June 10, 2008
|
|
37
|
|
|
|
|
|
Virginia Kempsville, LLC
|
|
Phase I Environmental Assessment, Kempsville Shopping Center, 1830 & 1832 Kempsville Road, Virginia Beach, Virginia 23464, prepared by Property Solutions Inc., dated December 16, 1998
|
|
38
|
|
|
|
|
|
Virginia General Booth, LLC
|
|
Phase I Environmental Assessment, General Booth Shopping Center, 1615 General Booth Boulevard, Virginia Beach, Virginia 23454, prepared by Property Solutions Inc., dated December 17, 1998
|
|
39
|
|
|
|
|
|
Fairview Plaza Associates, L.P.
|
|
Phase I Environmental Site Assessment, Fairview Plaza, 120-132 Old York Road, New Cumberland, Pennsylvania 17070, prepared by Eckland Consultant, Inc., dated August 22, 2002
|
|
40
|
SCHEDULE 6.14.3 -
5
|
|
|
|
|
|
|
Fort Washington Fitness, L.P.
|
|
Phase I Environmental Site Assessment, LA Fitness, 1175 Virginia Drive, Ft. Washington, Pennsylvania, prepared by EBI Consulting, dated November 11, 2007
|
|
41
|
|
|
|
|
|
Newport Plaza Associates, L.P.
|
|
Phase I Environmental Site Assessment, Newport Plaza, Route 34, 2-18 Newport Plaza, Newport, Perry County, Pennsylvania 10774, prepared by Eckland Consultant, Inc., dated August 22, 2002
|
|
42
|
|
|
|
|
|
Virginia Little Creek, LLC
|
|
Phase I Environmental Site Assessment, Farm Fresh Store #212, prepared by O’Brien & Gere Engineers, Inc., dated October 1998
|
|
43
|
|
|
|
|
|
Virginia Suffolk, LLC
|
|
Phase I Environmental Assessment, Farm Fresh Store and Pharmacy, Suffolk, Virginia, prepared by Civil & Environmental Consultants, Inc., dated June 8, 2005
|
|
44
|
|
|
|
|
|
Halifax Plaza Associates, L.P.
|
|
Phase I Environmental Site Assessment, 3616 Peters Mountain Road, Halifax, Dauphin County, Pennsylvania, prepared by Civil & Environmental Consultants, Inc., dated December 16, 2005
|
|
45
|
|
|
|
|
|
Virginia Smithfield, LLC
|
|
Phase I Environmental Assessment, Farm Fresh #238, 1282 Smithfield Plaza, Smithfield, Virginia 23430, prepared by Property Solutions, Inc., dated December 17, 1998
|
|
46
|
|
|
|
|
|
Cedar-Timpany, LLC
|
|
Phase I Environmental Site Assessment, Timpany Plaza, 360 Timpany Blvd, Gardner, Massachusetts, prepared by EMG, dated March 16, 2007
|
|
47
|
|
|
|
|
|
CF Pottsgrove Associates, L.P.
|
|
Phase I Environmental Site Assessment, Upland Square, Waste Management Properties, State Street, Pennsylvania Route 100, West Pottsgrove Township, Montgomery County, Pennsylvania, prepared by RT Environmental Services, Inc.,
dated September 25, 2008
|
|
48
|
|
|
|
|
|
Cedar-Bethel, LLC
|
|
Phase I Environmental Site Assessment (ESA) Update, 81 Stony Hill Road, Bethel, Connecticut, prepared by CCA LLC, dated January 31,
2008
Phase I Environmental Site Assessment (ESA) Update, 81 Stony Hill Road, Bethel,
Connecticut, prepared by CCA LLC, dated September 21, 2007
Phase I Environmental
Site Assessment (ESA) Update, 81 & 89 Stony Hill Road, Bethel, Connecticut, prepared by CCA LLC, dated October 1, 2002
Phase II Environmental Site Assessment (ESA), 81 & 89 Stony Hill Road, Bethel, Connecticut, prepared by CCA LLC, dated October 4, 2002
Phase I Environmental Site Assessment, 89 Stony Hill Road, Bethel, Connecticut, prepared
by Coneco Engineers & Scientists, dated July 8, 2002
Phase I Environmental
Site Assessment, 87 Stony Hill Road, Bethel, Connecticut, prepared by Coneco Engineers & Scientists, dated February 26, 2001
|
|
49
|
SCHEDULE 6.14.3 -
6
SCHEDULE 6.14.5
GROUND LEASES
That certain Ground Lease,
dated as of October 31, 2003, by and between SPSP Corporation, Passyunk Supermarket, Inc., and Twenty Fourth Street Passyunk Partners, L.P., as landlord, and Cedar-South Philadelphia I, LLC, as tenant.
That certain Lease, dated as of June 24, 1992, between Interstate Land Management Corporation and Riverview Commons, Inc.
That certain First Amendment to Lease, dated as of February 10, 1993, between Interstate Land Management Corporation and Riverview Commons, Inc.
That certain Lease, dated as of October 16, 1991, between Interstate Land Management Corporation and Riverview Commons, Inc.
That certain Assignment and Assumption of Lease Agreement and Estoppel Certificate, between Interstate Land Management Corporation and Riverview Commons, Inc.
(with regard to the Lease dated June 24, 1992).
That certain Assignment and Assumption of Lease Agreement and Estoppel Certificate, between
Interstate Land Management Corporation and Riverview Commons, Inc. (with regard to the Lease dated October 16, 1991).
As of the Closing Date, no
ground lessor is an Affiliate of any Loan Party.
SCHEDULE 6.23.1
MAJOR LEASE LOCATIONS
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party/Property Owner
|
|
Borrowing Base Property
|
|
Major Leases
|
|
Square
Feet
|
|
|
Prop.
Ref.
No.
|
|
|
|
|
|
|
|
Cedar-South Philadelphia I, LLC
|
|
South Philadelphia Shopping Plaza Philadelphia, Pennsylvania
|
|
LA Fitness
Ross Dress for Less
Shop Rite
Dollar Tree
|
|
|
31,000
31,349
54,388
6,930
|
|
|
1
|
|
|
|
|
|
|
|
Cedar-Riverview LP
|
|
Riverview Shopping Center Philadelphia, Pennsylvania
|
|
Avalon Carpet, Tile, Etc.
Pep Boys
United Artist Theatre Group
Staples
|
|
|
25,000
22,000
77,700
18,000
|
|
|
2
|
|
|
|
|
|
|
|
Cedar Dubois, LLC
|
|
Dubois Commons Shopping Center
Sandy,
Pennsylvania
|
|
The Bon-Ton Dept Stores
Shop N Save
Dollar Tree
|
|
|
54,500
52,654
6,250
|
|
|
3
|
|
|
|
|
|
|
|
Cedar Brickyard, LLC
Cedar Brickyard II,
LLC
|
|
Brickyard Shopping Center
Berlin,
Connecticut
|
|
Home Depot
Kohl’s
|
|
|
103,003
58,966
|
|
|
4
|
|
|
|
|
|
|
|
Cedar St. James, LLC
|
|
St. James Shopping Center, Hagerstown, Maryland
|
|
Food Lion
|
|
|
33,000
|
|
|
5
|
|
|
|
|
|
|
|
Cedar Kenley Village, LLC
|
|
Kenley Village Shopping Center, Hagerstown, Maryland
|
|
Food Lion
|
|
|
29,000
|
|
|
6
|
|
|
|
|
|
|
|
Cedar-Valley Plaza, LLC
|
|
Valley Plaza Shopping Center, Hagerstown, Maryland
|
|
K-Mart
Ollie’s Bargain Outlet
Tractor Supply Company
|
|
|
95,810
41,888
32,095
|
|
|
7
|
|
|
|
|
|
|
|
Cedar-Glen Allen UK, LLC
|
|
Ukrop’s Shopping Center,
Glen Allen,
Virginia
|
|
Giant Food Store/Martin’s
|
|
|
63,328
|
|
|
8
|
|
|
|
|
|
|
|
Cedar-Fredericksburg UK, LLC
|
|
Ukrop’s Shopping Center,
Fredericksburg,
Virginia
|
|
Ukrop’s
|
|
|
63,000
|
|
|
9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party/Property Owner
|
|
Borrowing Base Property
|
|
Major Leases
|
|
Square
Feet
|
|
|
Prop.
Ref.
No.
|
|
Cedar-Revere LLC
|
|
Unit 2 of The Shops at Suffolk Downs Condominium, Revere, Massachusetts
|
|
Stop & Shop
Dollar Tree
|
|
|
74,977
9,500
|
|
|
10
|
|
|
|
|
|
|
|
Cedar-Palmyra, LLC
|
|
Palmyra Shopping Center
Palmyra,
Pennsylvania
|
|
Weis Markets
|
|
|
46,912
|
|
|
13
|
|
|
|
|
|
|
|
Cedar-Annie Land, LLC
|
|
Annie Land Plaza
Lovington, Virginia
|
|
Food Lion
|
|
|
29,000
|
|
|
15
|
|
|
|
|
|
|
|
Cedar-Fairview Commons, LLC
|
|
Fairview Commons
Fairview Township,
Pennsylvania
|
|
Family Dollar
|
|
|
10,789
|
|
|
17
|
|
|
|
|
|
|
|
Cedar-Norwood, LLC
|
|
Hannaford Plaza
Norwood, Massachusetts
|
|
Dollar Tree Stores
Hannaford Brothers
Planet Fitness
|
|
|
16,798
42,598
18,830
|
|
|
18
|
|
|
|
|
|
|
|
Cedar-Metro Square II, LLC
|
|
Metro Square at Owings Mills, Owings Mills, Maryland
|
|
|
|
|
|
|
|
19
|
|
|
|
|
|
|
|
Greentree Road L.L.C. 1
|
|
Washington Center Shops, Washington, New Jersey
|
|
|
|
|
|
|
|
22
|
|
|
|
|
|
|
|
Cedar-Bristol, LLC
|
|
Oakland Commons, Bristol, Connecticut
|
|
Bristol Ten Pin
Wal-Mart
|
|
|
35,189
54,661
|
|
|
23
|
|
|
|
|
|
|
|
Cedar-Circle, LLC
|
|
Circle Plaza, Shamokin Dam Borough, Pennsylvania
|
|
K-Mart
|
|
|
92,171
|
|
|
24
|
|
|
|
|
|
|
|
Hamilton FC Associates, L.P.
|
|
Crossroads II Shopping Center, Dunmore, PA
|
|
Giant Food Store
Dollar Tree
|
|
|
76,415
10,029
|
|
|
26
|
|
|
|
|
|
|
|
Cedar-Lake Raystown, LLC
|
|
Lake Raystown Shopping Center, Smithfield Township, PA
|
|
Giant Food Store
Tractor Supply
Company
|
|
|
61,435
32,711
|
|
|
27
|
|
|
|
|
|
|
|
Cedar-PC Plaza, LLC
|
|
Price Chopper Plaza, Webster, MA
|
|
Price Chopper
|
|
|
58,545
|
|
|
28
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party/Property Owner
|
|
Borrowing Base Property
|
|
Major Leases
|
|
Square
Feet
|
|
|
Prop.
Ref.
No.
|
|
Cedar-Trexler Plaza 2, LLC and Cedar-Trexler Plaza 3, LLC
|
|
Trexler Plaza Shopping Center, Lower and Upper Macungie Townships, PA
|
|
Giant Food Stores
Hobby Lobby
Redner’s Markets
Big Lots
Dollar Tree
|
|
|
74,105
57,512
47,900
33,824
14,765
|
|
|
30
|
|
|
|
|
|
|
|
Cedar-Campbelltown, LLC
|
|
Northside Commons Shopping Center, South Londonderry Township, PA
|
|
Redner’s Market
Dollar Tree
|
|
|
48,519
8,640
|
|
|
31
|
|
|
|
|
|
|
|
Cedar-Carll’s Corner
|
|
Carll’s Corner, 15 Cornwell Drive, Bridgeton, NJ
|
|
Acme Markets
|
|
|
55,000
|
|
|
32
|
|
|
|
|
|
|
|
Cedar Huntingdon, LLC
|
|
Unites 1, 3, 4 and 5 in the Huntingdon Plaza Condominium, Smithfield Township, PA
|
|
Peebles, Inc.
|
|
|
22,060
|
|
|
33
|
|
|
|
|
|
|
|
Washington Center L.L.C. 1
|
|
Washington Center, 415 Egg Harbor Road, Sewell, NJ
|
|
Acme Stores
|
|
|
66,046
|
|
|
34
|
|
|
|
|
|
|
|
Academy Plaza L.L.C. 1
|
|
Academy Plaza, 3200-3296 Red Lion Road, Philadelphia, PA
|
|
Acme Markets
|
|
|
50,918
|
|
|
35
|
|
|
|
|
|
|
|
Port Richmond L.L.C. 1
|
|
Port Richmond, 2401-2499 Aramingo Ave., Philadelphia, PA
|
|
Thriftway
|
|
|
40,000
|
|
|
36
|
|
|
|
|
|
|
|
Cedar Carbondale LLC
|
|
Carbondale Plaza, 95 Brooklyn Street, Carbondale, PA
|
|
Weis Markets
Dollar Tree
|
|
|
52,720
10,800
|
|
|
37
|
|
|
|
|
|
|
|
Virginia Kempsville, LLC
|
|
Kempsville Crossing, 1830 Kempsville Rd., Virginia Beach, VA
|
|
Walmart
|
|
|
41,610
|
|
|
38
|
|
|
|
|
|
|
|
Virginia General Booth, LLC
|
|
General Booth Shopping Center, 1615 General Booth Blvd., Virginia Beach, VA
|
|
Farm Fresh
|
|
|
53,758
|
|
|
39
|
|
|
|
|
|
|
|
Fairview Plaza Associates, L.P.
|
|
Fairview Plaza, 120-132 Old York Rd., New Cumberland, PA
|
|
Giant
|
|
|
59,237
|
|
|
40
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal Name of Loan Party/Property Owner
|
|
Borrowing Base Property
|
|
Major Leases
|
|
Square
Feet
|
|
|
Prop.
Ref.
No.
|
|
Fort Washington Fitness, L.P.
|
|
LA Fitness Facility, 1175 Virginia Rd., Fort Washington, PA
|
|
LA Fitness
|
|
|
41,000
|
|
|
41
|
|
|
|
|
|
|
|
Newport Plaza Associates, L.P.
|
|
Newport Plaza, 2-18 Newport Plaza, Newport, PA
|
|
Giant
|
|
|
39,000
|
|
|
42
|
|
|
|
|
|
|
|
Virginia Little Creek, LLC
|
|
Virginia Little Creek, 230 East Little Creek Rd., Norfolk, VA
|
|
Farm Fresh
|
|
|
66,120
|
|
|
43
|
|
|
|
|
|
|
|
Virginia Suffolk, LLC
|
|
Suffolk Plaza, 1401 N. Main St., Suffolk, VA
|
|
Farm Fresh
|
|
|
67,216
|
|
|
44
|
|
|
|
|
|
|
|
Halifax Plaza Associates, L.P.
|
|
Halifax Plaza, 3761-3777 Peters Mountain Rd., Halifax, PA
|
|
Giant
|
|
|
32,000
|
|
|
45
|
|
|
|
|
|
|
|
Virginia Smithfield, LLC
|
|
Smithfield Plaza, Smithfield, VA
|
|
Farm Fresh
|
|
|
45,544
|
|
|
46
|
|
|
|
|
|
|
|
Cedar-Timpany, LLC
|
|
Timpany Plaza, 434 Timpany Blvd., Gardner, MA
|
|
Stop & Shop
|
|
|
59,947
|
|
|
47
|
|
|
|
|
|
|
|
CF Pottsgrove Associates, L.P.
|
|
Upland Square, Route 100 and Upland Square Drive, Pottstown, PA
|
|
Giant
La Fitness
Carmike Cinemas
TJ Maxx
Best Buy
Staples
|
|
|
76,500
42,000
45,276
25,000
30,000
18,336
|
|
|
48
|
|
|
|
|
|
|
|
Cedar-Bethel, LLC
|
|
Big Y Shopping Center, Stony Hill Road (Route 6) and Old Hawleyville Road, Bethel, CT
|
|
Big Y
|
|
|
63,817
|
|
|
49
|
SCHEDULE 8.3.6
DESIGNATED PROPERTIES
Shopping
Centers:
Gahanna Discount Drug Mart Plaza
Maxatawny
Marketplace
McCormick Place
Shore Mall
Land and approx. acres:
Blue Mountain Commons – 9
acres
Halifax Commons – 4 acres
Halifax Plaza –
13 acres
Liberty Marketplace – 16 acres
Oregon Pike
– 9 acres
Shore Mall – 50 acres
SCHEDULE 8.3.6 -
1
SCHEDULE 15.1
NOTICES
BORROWER:
Cedar Realty Trust Partnership, L.P.
44 South Bayles Avenue
Port Washington, New York 11050
Attention: Philip R. Mays
Telephone: (516) 944-4572
Telecopier: (516) 767-6497
Electronic Mail: pmays@cdrrt. com
Website Address:
www.cedarrealtytrust.com
U.S. Taxpayer Identification Number: 11-3440066
with copies to:
Cedar Realty Trust Partnership, L.P.
44 South Bayles Avenue
Port Washington, New York 11050
Stuart Widowski, Esq.
Telephone: (516) 944-4529
Telecopier: (516) 767-6497
Electronic Mail:
swidowski@cdrrt.com
and
Stroock &
Stroock & Lavan LLP
180 Maiden Lane
New York, NY
10038-4982
Attention: Karen Scanna, Esq.
Telephone:
(212) 806-5400
Telecopier: (212) 806-6006
Electronic Mail: kscanna@stroock.com
SCHEDULE 15.1 -
1
ADMINISTRATIVE AGENT:
Administrative Agent’s Office
(for
payments and Requests for Credit Extensions):
KeyBank National Association
225 Franklin Street, 18th Floor
MA-01-22-0018
Boston, Massachusetts 02110
Attention: Gregory W. Lane
Telephone: 617-385-6212
Telecopier: 617-385-6293
Electronic Mail: gregory_w_lane@keybank.com
Account
No.: 1292000883
Ref: Cedar Realty Trust Partnership L.P.
ABA# 026009593
Other Notices as Administrative
Agent
:
KeyBank National Association
225 Franklin
Street, 18th Floor
MA-01-22-0018
Boston, Massachusetts
02110
Attention: Gregory W. Lane
Telephone: 617-385-6212
Telecopier: 617-385-6293
Electronic Mail:
gregory_w_lane@keybank.com
SCHEDULE 15.1 -
2
EXHIBIT A
FORM OF
LOAN NOTICE
Date: ,
|
To:
|
KeyBank National Association, as Administrative Agent
|
Ladies and Gentlemen:
Reference is made to that certain Loan Agreement, dated as of February 11, 2014 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “
Agreement
”), the terms defined therein being used herein as therein defined, among Cedar Realty Trust Partnership, L.P. (the “
Borrower
”), the Lenders from time
to time party thereto, and KeyBank National Association, as Administrative Agent.
The undersigned hereby requests (select one):
¨
A Loan Advance for the Tranche A Term Facility
¨
A Loan Advance for the Tranche B Term Facility
¨
A conversion or continuation of Loans
[Type of Loan requested]
|
|
4.
|
For a LIBO Rate Advance: an Interest Period of: months
|
The
undersigned hereby represents and warrants the following:
1
|
|
1.
|
The Loan Advance is for the purpose of: .
|
|
|
2.
|
The Total Outstandings reflecting the funding of the Loan Advance being requested hereby are:
.
|
|
1
|
Only include for a Loan Advance.
|
Exhibit A -
1
|
|
3.
|
Maximum Loan Amount pursuant to Section 2.1.1(a) of the Agreement (lesser of Total Commitment and the Borrowing Base Value) is: $ .
|
|
|
4.
|
The aggregate remaining amount which may be funded under the Agreement is:
.
|
|
|
5.
|
Attached as
Exhibit A
hereto are calculations evidencing the Borrower’s continued compliance with the Financial Covenants, as satisfied by the Closing Compliance Certificate, or once delivered, the most
recent Compliance Certificate delivered by the Borrower.
|
|
|
6.
|
The representations and warranties of the Borrower and each other Loan Party contained in Article 6 of the Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in
connection herewith or therewith, are true and correct in all material respects on and as of the date of the Credit Extension requested hereby, except to the extent that such representations and warranties specifically refer to an earlier date, in
which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this notice, the representations and warranties contained in Section 6.8 of the Agreement shall be deemed to refer to the
most recent statements furnished pursuant to Section 7.2.1 and 7.2.2 of the Agreement and except as to the representations and warranties in Sections 6.4, 6.7, 6.9, and 6.14 of the Agreement which may be modified only to reflect events
occurring after the date hereof as specifically disclosed in writing to Administrative Agent prior to or simultaneously with such written request.
|
|
|
7.
|
No Default or Event of Default exists, or would result from the Loan Advance requested hereby or from the application of the proceeds thereof.
|
Note: Each request for a Loan Advance hereunder shall be for (a) a minimum amount as required by Section 2.3.6 of the Loan Agreement,
and (b) an amount not to exceed (x) the Maximum Loan Amount less (y) the Total Outstandings (after giving effect to such Loan Advance).
Delivery of executed counterparts of this Loan Notice by telecopy or other electronic means shall be effective as an original.
Exhibit A -
2
|
|
|
|
|
|
|
CEDAR REALTY TRUST PARTNERSHIP, L.P., a Delaware limited partnership
|
|
|
|
|
By:
|
|
Cedar Realty Trust, Inc., a Maryland corporation, its general partner
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
Exhibit A -
3
EXHIBIT A
[to be completed by Borrower]
Exhibit A -
4
EXHIBIT B
FORM OF
NOTE
,
FOR VALUE RECEIVED, the undersigned (the “
Borrower
”), hereby promises to pay to
or
registered assigns (the “
Lender
”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of the Loan from time to time made by the Lender to the Borrower or so much thereof as shall be
outstanding from time to time under that certain Loan Agreement, dated as of February 11, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “
Agreement
;” the terms defined
therein being used herein as therein defined), among the Borrower, the Lender, the other financial institutions named therein and from time to time party thereto, and KeyBank National Association, as Administrative Agent (in such capacity, the
“
Administrative Agent
”).
The Borrower promises to pay interest on the unpaid principal amount of each Loan Advance from
the date of such Loan Advance until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the
Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due under the terms of the Agreement, such unpaid amount shall bear interest, to be paid in accordance with the terms
of the Agreement, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. Loan Advances may be repaid and re-borrowed in accordance with the terms
and provisions of the Agreement.
This Note is a Note as referred to in the Agreement, is entitled to the benefits thereof and may be
prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Guaranty. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement,
all amounts then remaining unpaid on this Note may be declared to be, immediately due and payable, all as provided in the Agreement. Loan Advances made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender
in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date and amount of its Loan Advances and payments with respect thereto;
provided
,
however
, that if any of said schedules
shall be inconsistent with the terms of the Agreement, the terms of the Agreement shall control.
The Borrower, for itself, its successors
and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note, except as otherwise provided in the Agreement.
The terms of Sections 13.4, 15.2, 15.6 and 15.16 of the Agreement are incorporated herein by reference, mutatis mutandis.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Delivery of executed counterparts of this Note by telecopy or other electronic means shall be effective as an original.
Any notices given with respect to this Note shall be given in the manner provided for in the Loan Agreement.
|
|
|
|
|
|
|
CEDAR REALTY TRUST PARTNERSHIP, L.P., a Delaware limited partnership
|
|
|
|
|
By:
|
|
Cedar Realty Trust, Inc., a Maryland corporation, its general partner
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
EXHIBIT C
FORM OF
COMPLIANCE
CERTIFICATE
Financial Statement Date: ,
To: KeyBank National Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that
certain Loan Agreement, dated as of February 11, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “
Agreement
;” the terms defined therein being used herein as therein
defined), among Cedar Realty Trust Partnership, L.P. (the “
Borrower
”), the Lenders from time to time party thereto, and KeyBank National Association, as Administrative Agent.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected/authorized of Cedar
Realty Trust, Inc., general partner of the Borrower.
2. I have reviewed the terms of the Agreement and I have made, or have caused to be
made under my supervision, a review of the transactions and conditions of the Borrower during the accounting period covered by the accompanying financial statements.
3. The financial statements accompanying this certificate fairly present in all material respects the Consolidated financial condition of CRT.
The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Default or an Event of Default during or at the end of the accounting period covered by the
accompanying financial statements or as of the date of this Certificate, except as set forth below.
4. The financial covenant analyses and
information accompanying this certificate are true and accurate on and as of the date of this Certificate, except as set forth below.
Described below are the exceptions, if any, to paragraphs 3 and 4, listing the nature of the condition or event, the period during which it
has existed and the action which the Borrower has taken, is taking, or proposes to take with respect to each such condition or event:
Exhibit C -
1
5. Accompanying this certificate are the following: (a) a report containing, to the extent
not included in the deliveries under Sections 7.2.1, 7.2.2, or 7.2.3 of the Agreement for all Individual Properties, a summary listing of all Net Operating Income, revenues, rent roll, mortgage Debt, if any, and, in addition, for each Individual
Property acquired during the quarter just ended, the cost basis and the amount and terms of any assumed Debt, (b) a listing of all filings by the Borrower or CRT with the SEC, including, without limitation, full copies of CRT’s 10-Q and
10-K filings, (c) if requested by the Administrative Agent and to the extent not previously provided, a list of any Major Leases entered into during the most recent fiscal quarter and any existing Leases that became Major Leases during the most
recent fiscal quarter and (d) any material change in accounting policies required by GAAP or financial reporting practices by any Loan Party or their Subsidiaries.
Delivery of executed counterparts of this Compliance Certificate by telecopy or other electronic means shall be effective as an original.
Exhibit C -
2
IN WITNESS WHEREOF,
the undersigned has executed this Certificate as of
, .
|
|
|
|
|
|
|
CEDAR REALTY TRUST PARTNERSHIP, L.P., a Delaware limited partnership
|
|
|
|
|
By:
|
|
Cedar Realty Trust, Inc., a Maryland corporation, its general partner
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
Exhibit C -
3
SCHEDULE 1
to the Compliance Certificate
For
the Quarter/Year ended ,
[Quarterly/Annual] Financial Statements
Exhibit C -
4
SCHEDULE 2
to the Compliance Certificate
For
the Quarter/Year ended ,
[FINANCIAL COVENANT CALCULATIONS TO BE ATTACHED BY BORROWER]
Exhibit C -
5
SCHEDULE 3
to the Compliance Certificate
[TO
BE ATTACHED BY BORROWER]
Exhibit C -
6
EXHIBIT D
FORM OF
ASSIGNMENT AND
ASSUMPTION
This Assignment and Assumption (this “
Assignment and Assumption
”) is dated as of the Effective Date set
forth below and is entered into by and between [the][each]
1
Assignor identified in item 1 below ([the][each, an] “
Assignor
”) and [the][each]
2
Assignee identified in item 2 below ([the][each, an] “
Assignee
”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]
3
hereunder are several and not joint.]
4
Capitalized terms used but not defined herein shall have the meanings given to them in the Loan Agreement
identified below (the “
Loan Agreement
”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each]
Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Loan Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity
as a Lender][their respective capacities as Lenders] under the Loan Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of
[the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Loan Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and
(ii) above being referred to herein collectively as [the][an] “
Assigned Interest
”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by [the][any] Assignor.
|
1
|
For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose
the second bracketed language.
|
|
2
|
For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language.
|
|
4
|
Include bracketed language if there are either multiple Assignors or multiple Assignees.
|
Exhibit D -
1
|
|
|
|
|
|
|
|
|
1.
|
|
Assignor[s]
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.
|
|
Assignee[s]
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[for each Assignee, indicate [Affiliate][Approved Fund] of [
identify Lender
]]
|
|
|
|
|
3.
|
|
Borrower
: Cedar Realty Trust Partnership, L.P.
|
|
|
|
|
4.
|
|
Administrative Agent
: KeyBank National Association, as the administrative agent under the Loan Agreement
|
|
|
|
|
5.
|
|
Loan Agreement
: Loan Agreement, dated as of February 11, 2014, among Cedar Realty Trust, L.P., the Lenders from time to time party thereto, and KeyBank National Association, as Administrative
Agent
|
|
|
|
|
6.
|
|
Assigned Interest:
|
Tranche A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignor[s]
5
|
|
Assignee[s]
6
|
|
Facility
Assigned
|
|
Aggregate
Amount of
Commitment/Loans
for all Lenders
7
|
|
|
Amount of
Commitment/Loans
Assigned
|
|
|
Percentage
Assigned of
Commitment/
Loans
8
|
|
|
CUSIP
Number
|
|
|
|
|
|
Tranche A Commitment
|
|
$
|
|
|
|
$
|
|
|
|
|
|
%
|
|
|
|
|
|
|
|
Tranche A Commitment
|
|
$
|
|
|
|
$
|
|
|
|
|
|
%
|
|
|
|
|
|
|
|
Tranche A Commitment
|
|
$
|
|
|
|
$
|
|
|
|
|
|
%
|
|
|
|
5
|
List each Assignor, as appropriate.
|
|
6
|
List each Assignee, as appropriate.
|
|
7
|
Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
|
|
8
|
Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
|
Exhibit D -
2
Tranche B
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignor[s]
9
|
|
Assignee[s]
10
|
|
Facility
Assigned
|
|
Aggregate
Amount of
Commitment/Loans
for all Lenders
11
|
|
|
Amount of
Commitment/Loans
Assigned
|
|
|
Percentage
Assigned of
Commitment/
Loans
12
|
|
|
CUSIP
Number
|
|
|
|
|
|
Tranche B
Commitment
|
|
$
|
|
|
|
$
|
|
|
|
|
|
%
|
|
|
|
|
|
|
|
Tranche B
Commitment
|
|
$
|
|
|
|
$
|
|
|
|
|
|
%
|
|
|
|
|
|
|
|
Tranche B
Commitment
|
|
$
|
|
|
|
$
|
|
|
|
|
|
%
|
|
|
Effective Date:
, 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
|
|
|
|
|
ASSIGNOR
|
|
[NAME OF ASSIGNOR]
|
|
|
|
|
By:
|
|
|
|
|
|
Title:
|
|
|
|
ASSIGNEE
|
|
[NAME OF ASSIGNEE]
|
|
|
|
|
By:
|
|
|
|
|
|
Title:
|
[Consented to and]
14
Accepted:
|
9
|
List each Assignor, as appropriate.
|
|
10
|
List each Assignee, as appropriate.
|
|
11
|
Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
|
|
12
|
Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
|
|
13
|
To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
|
|
14
|
To be added only if the consent of the Administrative Agent is required by the terms of the Loan Agreement.
|
Exhibit D -
3
|
|
|
|
|
KEYBANK NATIONAL ASSOCIATION, as Administrative Agent
|
|
|
|
|
By:
|
|
|
|
|
|
Title:
|
|
|
|
[Consented to:]
15
|
|
|
|
|
By:
|
|
|
|
|
|
Title:
|
|
15
|
To be added only if the consent of the Borrower and/or other parties is required by the terms of the Loan Agreement.
|
Exhibit D -
4
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1.
Representations and Warranties
.
1.1.
Assignor
. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the
relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Loan Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2.
Assignee
. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Loan Agreement, (ii) it meets all the requirements to be an assignee under the Loan
Agreement (subject to such consents, if any, as may be required under the Loan Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Loan Agreement as a Lender thereunder and, to the extent of [the][the
relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Loan Agreement, and has received or has been accorded the opportunity to
receive copies of the most recent financial statements delivered pursuant to the terms of the Loan Agreement, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Loan Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any
other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
Exhibit D -
5
2.
Payments
. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant]
Assignee for amounts which have accrued from and after the Effective Date.
3.
General Provisions
. This Assignment and Assumption
shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.
Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be
governed by, and construed in accordance with, the law of the State of New York.
Exhibit D -
6
EXHIBIT E
FORM OF
CLOSING
COMPLIANCE CERTIFICATE
Closing Date: , 2014
|
To:
|
KeyBank National Association, as Administrative Agent
|
Ladies and Gentlemen:
Reference is made to that certain Loan Agreement, dated as of February 11, 2014 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “
Agreement
;” the terms defined therein being used herein as therein defined), among Cedar Realty Trust Partnership, L.P. (the “
Borrower
”), the Lenders from time
to time party thereto, and KeyBank National Association, as Administrative Agent. All capitalized terms used herein which are not otherwise defined shall have the meaning ascribed to such term under the Agreement.
The undersigned Authorized Officer hereby certifies as of the date hereof that he/she is the
of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on behalf of the Borrower, and
that:
1. No Default or Event of Default has occurred or would occur after giving effect to the Agreement, the Loan Documents and all
Credit Extensions occurring on the Closing Date.
2. The financial covenant analyses and information set forth on
Schedule 1
attached hereto are true and accurate on and as of the date set forth therein.
3. The Borrower, CRT and each of the Borrowing Base
Property Owners (both before and after giving effect to the Credit Extensions occurring on the Closing Date) (a) is solvent, (b) has assets having a fair value in excess of the amount required to pay such Person’s probable liabilities
and existing Debts as such become absolute and mature, and (c) has adequate capital for the conduct of such Person’s business and the ability to pay such Person’s Debts from time to time incurred in connection therewith as such Debts
mature.
4. No change has occurred in the financial condition, business, affairs, operations or control of Borrower and/or the Loan
Parties, since the date of their respective financial statements most recently delivered to Administrative Agent or any of the Lenders, which change has had or could reasonably be expected to have a Material Adverse Effect.
5. All representations and warranties made by or on behalf of any of the Borrower and the other
Loan Parties, or any of them, to the Administrative Agent or any of the Lenders are true, accurate and complete in all material respects and shall do not omit any material fact necessary to make the same not misleading.
6. There are not any actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or
regulatory authority by any entity (private or governmental) pending or, to the best of the Borrower’s knowledge, threatened with respect to the Loan, the transactions contemplated in the Loan Documents, or the Borrower, any other Loan Party,
or any other Borrower Subsidiary, which are not fully covered (subject to deductibles) by an insurance policy issued by a reputable and financially viable insurance company or, to the extent not so covered, could (a) materially adversely affect
a Borrowing Base Property or (b) have or reasonably be expected to have a Material Adverse Effect.
7. No Laws prohibit or adversely
limit the capacity or authority of the Borrower or any Loan Party to enter into the Loan Documents and perform the obligations of such Person with respect thereto.
8. There has not been any material unrepaired or unrestored damage or destruction by fire or otherwise to any of the real or tangible personal
property comprising the Borrowing Base Properties.
9. No third party consents and/or agreements are required with respect to entering
into the Loan Documents or performing the obligations thereunder.
Delivery of executed counterparts of this Compliance Certificate by
telecopy or other electronic means shall be effective as an original.
IN WITNESS WHEREOF,
the undersigned has executed this Certificate as of the date and year
set forth above.
|
|
|
|
|
|
|
CEDAR REALTY TRUST
PARTNERSHIP,
L.P., a Delaware limited
partnership
|
|
|
|
|
By:
|
|
Cedar Realty Trust, Inc., a Maryland
corporation, its general partner
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
SCHEDULE 1
to the Closing Certificate
[TO BE
COMPLETED BY BORROWER]
EXHIBIT F-1
FORM OF
CRT GUARANTY
GUARANTY
This Guaranty (hereinafter, the “
Guaranty
”) is given pursuant to the terms and conditions of that certain Loan
Agreement, dated as of February 11, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “
Loan Agreement
”), among Cedar Realty Trust Partnership, L.P. (the
“
Borrower
”), the Lenders from time to time party thereto, and KeyBank National Association, as Administrative Agent (in such capacity as Administrative Agent, the “
Agent
”).
Capitalized terms used herein and not
otherwise specifically defined shall have the same meaning herein as in the Loan Agreement.
FOR VALUE RECEIVED, and to induce Agent
and the Lenders to extend credit to the Borrower as provided for in the Loan Agreement and the other Loan Documents, CEDAR REALTY TRUST, INC., a Maryland corporation (hereinafter, “
Guarantor
”), hereby unconditionally agrees as
follows:
1.
Guaranty
. Each Guarantor, as a primary party and not merely as a surety, unconditionally and irrevocably guarantees
the prompt and full payment (and not merely the collectability), performance, and observance of all of the obligations, terms and conditions to be paid, performed or observed by Borrower under the Note, Loan Agreement and each other Loan Document
and any Swap Contract, to or on behalf of the Agent, the Lenders, or any one of them, each as the same may be hereafter amended, modified, extended, renewed or recast, including, without limitation, all of the Obligations and the payment of all
principal, interest, fees, all obligations and other charges when due under the Note, the Loan Agreement and each other Loan Document and any Swap Contract (hereinafter, the “
Guaranteed Obligations
”).
Upon the occurrence of and during the continuance of any Event of Default under the Loan Agreement, or any of the other Loan Documents, or if
Agent has accelerated the Loan pursuant to a right to do so under the Loan Agreement, Agent may at its option proceed directly and at once, without notice (except as otherwise provided under the Loan Agreement), against Guarantor hereunder, without
proceeding against Borrower, any other Guarantor, or any other person for the Obligations or the Guaranteed Obligations.
If Borrower, or
Guarantor if so required, shall fail or refuse to perform or continue performance of all of the Obligations on the part of Borrower to be kept and performed, then, if an Event of Default exists on account thereof under the Loan Documents or this
Guaranty, in addition to any other rights and remedies which Agent or any Lender may have hereunder or elsewhere, and not in limitation thereof, Agent or any Lender, at such party’s option, may exercise any or all of its rights and remedies
under the Loan Agreement and each other Loan Document.
Exhibit F-1
1
This Guaranty shall survive and continue in full force and effect beyond and after the payment
and satisfaction of the Guaranteed Obligations and the Obligations in the event Agent or any Lender is required to disgorge or return any payment or property received as a result of any laws pertaining to preferences, fraudulent transfers or
fraudulent conveyances.
2.
Waivers
. Guarantor hereby waives and relinquishes to the fullest extent now or hereafter not prohibited
by applicable law:
|
|
(a)
|
all suretyship defenses and defenses in the nature thereof;
|
|
|
(b)
|
any right or claim of right to cause a marshaling of the assets of Borrower, or, if there shall be more than one Guarantor, to require Agent to proceed against any other Guarantor or any of Guarantors in any particular
order;
|
|
|
(c)
|
until satisfaction in full of the Obligations of the Borrower to the Agent and the Lenders, and the satisfaction in full of the Guaranteed Obligations, all rights and remedies, including, but not limited to, any rights
of subrogation, contribution, reimbursement, exoneration or indemnification pursuant to any agreement, express or implied, or now or hereafter accorded by applicable law to indemnitors, guarantors, sureties or accommodation parties; provided,
however, unless Agent otherwise expressly agrees in writing, such waiver by Guarantor shall not be effective to the extent that by virtue thereof Guarantor’s liability under this Guaranty is rendered invalid, voidable, or unenforceable under
any applicable state or federal law dealing with the recovery or avoidance of so-called preferences or fraudulent transfers or conveyances or otherwise;
|
|
|
(d)
|
notice of the acceptance hereof, presentment, demand for payment, protest, notice of protest, or any and all notice of nonpayment, nonperformance, nonobservance or default, or other proof or notice of demand whereby to
charge Guarantor therefor;
|
|
|
(e)
|
the pleading of any statute of limitations as a defense to Guarantor’s obligations hereunder;
|
|
|
(f)
|
the right to a trial by jury in any matter related to this Guaranty; and
|
|
|
(g)
|
the benefit of all other provisions of law which may be validly waived.
|
GUARANTOR, AGENT AND
LENDERS MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS GUARANTY, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS OR
ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS OR ACTIONS OF AGENT OR ANY LENDER RELATING TO THE
ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NONE OF THE PARTIES WILL SEEK TO
Exhibit F-1
2
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, GUARANTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. GUARANTOR CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF AGENT OR ANY LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER IS GIVEN AS A MATERIAL INDUCEMENT TO AGENT AND THE LENDERS TO ACCEPT THIS GUARANTY AND TO MAKE THE LOAN.
3.
Cumulative Rights
. Agent’s and any Lender’s rights under this Guaranty shall be in addition to and not in limitation of
all of the rights and remedies of Agent and any Lender under the Loan Documents. All rights and remedies of Agent and any Lender shall be cumulative and may be exercised in such manner and combination as Agent or any Lender may determine.
4.
No Impairment
. The liability of Guarantor hereunder shall in no way be limited or impaired by, and Guarantor hereby assents to and
agrees to be bound by, any amendment or modification of the provisions of the Loan Documents and any Swap Contract to or with Agent or any Lender by Borrower. In addition, the liability of Guarantor under this Guaranty and the other Loan Documents
and any Swap Contract shall in no way be limited or impaired by:
|
|
(a)
|
any extensions of time for performance required by any of the Loan Documents and any Swap Contract;
|
|
|
(b)
|
any amendment to or modification of any of the Loan Documents and any Swap Contract;
|
|
|
(c)
|
any sale or assignment of the Loan, or any sale, transfer or exchange of all or part of any Borrowing Base Property;
|
|
|
(d)
|
any exculpatory, or nonrecourse, or limited recourse, provision in any of the Loan Documents and any Swap Contract limiting Agent’s or any Lender’s rights to a deficiency judgment against Borrower or any other
person or entity;
|
|
|
(e)
|
the accuracy or inaccuracy of any of the representations or warranties made by or on behalf of Borrower, any general partner, owner, principal, or agent of Borrower, or Guarantor, under any Loan Document or otherwise;
|
|
|
(f)
|
the release of Borrower, any general partner, owner, principal, or agent of Borrower, or any other person or entity, from performance or observance of any of the agreements, covenants, terms or conditions contained in
any of the Loan Documents and any Swap Contract by operation of law, Agent’s or any Lender’s voluntary act, or otherwise;
|
Exhibit F-1
3
|
|
(g)
|
the filing of any bankruptcy or reorganization proceeding by or against Borrower or any general partner, owner, principal, or agent of Borrower or Guarantor;
|
|
|
(h)
|
the release of any other party now or hereafter liable upon or in respect of this Guaranty or any of the other Loan Documents and any Swap Contract; or
|
|
|
(i)
|
the invalidity or unenforceability of all or any portion of any of the Loan Documents and any Swap Contract as to Borrower, any Guarantor, or any other person or entity.
|
Any of the foregoing may be accomplished with or without notice to Borrower, any general partner, owner, principal, or agent of Borrower, or
Guarantor, and with or without consideration.
5.
Delay Not Waiver
. No delay on Agent’s or any Lender’s part in
exercising any right, power or privilege hereunder or under any of the Loan Documents shall operate as a waiver of any such privilege, power or right. No waiver by Agent or any Lender in any instance shall constitute a waiver in any other instance.
6.
Warranties and Representations
. Guarantor warrants and represents to Agent and each of the Lenders for the express purpose of
inducing Agent and the Lenders to enter into the Loan Agreement, to make each Loan Advance, to accept this Guaranty, and to otherwise complete the transactions contemplated by the Loan Agreement, that as of the date of this Guaranty, upon the date
of each Loan Advance, and at all times thereafter until the Loan is repaid and all Guaranteed Obligations to Agent and the Lenders have been satisfied in full, as follows:
|
|
(a)
|
Financial Information
. Copies of the financial statements of Guarantor have been delivered to Agent and each Lender and each of the same fairly present Guarantor’s financial condition as of the dates thereof
and no material and adverse change has occurred in Guarantor’s financial condition or business since the respective dates thereof; and each financial statement of Guarantor submitted in the future shall fairly present Guarantor’s financial
condition as of the dates thereof.
|
|
|
(b)
|
No Violation
. The payment and performance by Guarantor of the Guaranteed Obligations and Guarantor’s obligations under this Guaranty does not and shall not constitute a violation of any law, order,
regulation, contract or agreement to which Guarantor is a party or by which Guarantor or Guarantor’s property may be bound;
|
|
|
(c)
|
No Litigation
. There is no material litigation now pending or, to the best of Guarantor’s knowledge threatened in writing, against Guarantor which, if adversely decided would materially impair the ability of
Guarantor to pay and perform the Guaranteed Obligations, Guarantor’s obligations under the Loan Agreement, this Guaranty or any other Loan Document.
|
Exhibit F-1
4
|
|
(d)
|
Entity Matters
. The Guarantor is a duly organized, validly existing entity organized and in good standing under the laws of the State of Maryland, and has all requisite power and authority to conduct its business
and to own its property as now conducted or owned, and is qualified to do business in all jurisdictions where the nature and extent of its business is such that such qualification is required by law.
|
|
|
(e)
|
Valid and Binding
. Each of the Loan Documents to which Guarantor is a party constitutes Guarantor’s legal, valid and binding obligation in accordance with the respective terms thereof, subject to bankruptcy,
insolvency and similar laws of general application affecting the rights and remedies of creditors and with respect to the availability of remedies of specific enforcement subject to the discretion of the court before which proceedings therefor may
be brought.
|
|
|
(f)
|
Solvency
. Guarantor is solvent and is not rendered insolvent by the obligations undertaken in this Guaranty. Guarantor is not contemplating either the filing of a petition or proceeding under any state or federal
bankruptcy or insolvency or reorganization laws or the liquidating of all or a major portion of Guarantor’s property.
|
|
|
(g)
|
Material Economic Benefit
. The granting of the Credit Extensions to Borrower will constitute a material economic benefit to Guarantor.
|
7.
Notices
. Any notice or other communication in connection with this Guaranty shall be in writing and (i) deposited in the United
States mail, postage prepaid by registered or certified mail, (ii) hand delivered by any commercially recognized courier service or overnight delivery service such as Federal Express, or (ii) sent by facsimile transmission if a FAX Number
is designated below, addressed as follows:
If to Guarantor:
Cedar Realty Trust, Inc.
44
South Bayles Avenue
Port Washington, New York
Attention: Philip Mays
FAX
Number: (516) 767-6497
with a copy to:
Cedar Realty Trust, Inc.
44
South Bayles Avenue
Port Washington, New York
Attention: Stuart Widowski
FAX
Number: (516) 767-6497
Exhibit F-1
5
with copies by regular mail or such hand delivery or facsimile transmission to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New
York 10038-4982
Attention: Karen Scanna, Esquire
FAX Number: (212) 806-6006
If to Agent:
KeyBank National
Association
225 Franklin Street
Boston, Massachusetts 02110
Attention: Gregory W. Lane
FAX
No.: (617) 385-6293
with copies by regular mail or such hand delivery or facsimile transmission to:
Riemer & Braunstein LLP
Three Center Plaza, Suite 600
Boston, Massachusetts 02108
Attention: Kevin J. Lyons, Esquire
FAX No.: (617) 880-3456
Any such
addressee may change its address for such notices to any other address in the United States as such addressee shall have specified by written notice given as set forth above.
All periods of notice shall be measured from the deemed date of delivery. A notice shall be deemed to have been given, delivered and received
upon the earliest of: (i) if sent by such certified or registered mail, on the third Business Day following the date of post-mark, or (ii) if hand delivered by such courier or overnight delivery service, when so delivered or tendered for
delivery during customary business hours on a Business Day at the specified address, or (iii) if so mailed, on the date of actual receipt (or tender of delivery) as evidenced by the return receipt, or (iv) if so delivered, upon actual
receipt, or (v) if facsimile transmission is a permitted means of giving notice, upon receipt an evidenced by confirmation.
8.
No
Oral Change
. No provision of this Guaranty may be changed, waived, discharged, or terminated orally (in person or by telephone) or by any other means except by an instrument in writing signed by the party against whom enforcement of the change,
waiver or discharge or termination is sought.
9.
Parties Bound; Benefit
. This Guaranty shall be binding upon Guarantor and
Guarantor’s respective successors, assigns, heirs and personal representatives and shall be for the benefit of Agent and each Lender, and of any subsequent holder of Agent’s or any Lender’s interest in the Loan and of any owner of a
participation interest therein. In the event the interest of Agent or any other Lender under the Loan Documents is sold or transferred, then the liability of Guarantor to Agent or such Lender shall then be in favor of both the Agent or Lender
originally named herein and each subsequent holder of Agent’s or Lender’s interest therein, to the extent of their respective interests.
Exhibit F-1
6
10.
Joint and Several
. If there is more than one (1) Guarantor, the obligations of
each Guarantor, and such Guarantor’s respective successors, assigns, heirs and personal representatives, shall be and remain joint and several.
11.
Partial Invalidity
. Each of the provisions hereof shall be enforceable against Guarantor to the fullest extent now or hereafter not
prohibited by applicable law. The invalidity or unenforceability of any provision hereof shall not limit the validity or enforceability of each other provision hereof.
12.
Governing Law
. This Guaranty and the rights and obligations of the parties hereunder shall in all respects be governed by and
construed and enforced in accordance with the internal laws of the State of New York. Agent or any Lender may enforce its rights hereunder and under the other Loan Documents, including, but not limited to, its rights to sue Guarantor or to collect
any outstanding indebtedness in accordance with applicable law.
13.
Consent to Jurisdiction
. Each of Guarantor, Agent and Lenders
(by their acceptance of this Guaranty) irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the courts of the State of New York located within the First Department of the New York State Unified
Court System and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty or any other Loan Document, or for
recognition or enforcement of any judgment, and each of said parties irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State Court or, to the fullest
extent permitted by applicable law, in such Federal Court. Each of said parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Guaranty or in any other Loan Document shall affect any right that the Agent or any Lender may otherwise have to bring any action or proceeding relating to this Guaranty or any other Loan Document against
Guarantor or any other Loan Party or its properties in the courts of any jurisdiction. Guarantor hereby agrees and consents that in addition to any methods of service of process provided for under applicable law, all service of process in any such
suit, action or proceeding in any New York State or Federal Court located within the Southern District of the State of New York may be made by certified or registered mail, return receipt requested, directed to Guarantor at the address indicated in
Section 7 above and service so made shall be deemed completed five (5) days after the same shall have been so mailed.
14.
Additional Covenant of the Guarantor
. Guarantor shall pay, perform, observe and comply with all of the obligations, terms, covenants and conditions set forth in this Guaranty and by any provisions of the Loan Agreement specifically applicable
to Guarantor.
15.
Subordination
.
|
|
(a)
|
Except as may be otherwise specifically provided for in the Loan Agreement with respect to Permitted Distributions, any indebtedness of Borrower to
Guarantor, or to any affiliated entity, now or hereafter existing together with any interest thereon shall be, and such indebtedness is, hereby deferred, postponed and
|
Exhibit F-1
7
|
|
subordinated to the prior, full and Non-Contestable Payment and satisfaction of all Obligations of Borrower to the Agent and the Lenders. Payment and satisfaction of the Obligations shall be
deemed “Non-Contestable Payment” only upon such payment and satisfaction and the expiration of all periods of time within which a claim for the recovery of a preferential payment, or fraudulent conveyance, or fraudulent transfer, in
respect of payments received by Agent or any Lender as to the Obligations could be filed or asserted with: (A) no such claim having been filed or asserted, or (B) if so filed or asserted, the final, non-appealable decision of a court of
competent jurisdiction denying the claim or assertion.
|
|
|
(b)
|
Except as may be otherwise specifically provided for in the Loan Agreement with respect to Permitted Distributions, at all times until the full and Non-Contestable Payment and satisfaction of the Obligations of Borrower
to Agent and the Lenders with respect to the Loan (and including interest accruing on the Loan Advances after the commencement of a case by or against Borrower under any Debtor Relief Laws now or hereafter in effect, which interest the parties agree
shall remain a claim that is prior and superior to any claim of Guarantor or any affiliated entity notwithstanding any contrary practice, custom or ruling in cases under the Debtor Relief Laws, as now or hereafter in effect, generally), Guarantor,
and each affiliated entity, agrees not to accept any payment or satisfaction for any kind of indebtedness of Borrower to Guarantor, or any affiliated entity, and hereby assigns such indebtedness to Agent, on behalf of the Lenders, including, but not
limited to, the right to file proofs of claim and to vote thereon in connection with any such case under any Debtor Relief Laws, as now or hereafter in effect, and the right to vote on any plan of reorganization.
|
|
|
(c)
|
In addition to the foregoing, and not in limitation thereof, until the full payment and satisfaction of all Obligations of Borrower to Agent and the Lenders, any claims of Guarantor, or any affiliated entity, of
subrogation, contribution, reimbursement, exoneration, indemnification, or reimbursement arising out of any payment made on this Guaranty, whether such claim is based upon an express or implied contract, or operation of law, are hereby waived;
provided
,
however
, unless Agent otherwise expressly agrees in writing, such waiver by Guarantor shall not be effective to the extent that by virtue thereof Guarantor’s liability under this Guaranty or under any other Loan Document
is rendered invalid, voidable, or unenforceable under any applicable state or federal law dealing with the recovery or avoidance of so-called preferences or fraudulent conveyances or otherwise.
|
16.
Legal Fees, Costs and Expenses
. Guarantor further agrees to pay within thirty (30) days after demand all costs and expenses
reasonably incurred by Agent and the Lenders, or their successors or assigns, in connection with enforcing any of the rights or remedies of Agent or any Lender, or such successors or assigns, under or with respect to this Guaranty including, but not
limited to, attorneys’ fees and the out-of-pocket expenses and disbursements of such attorneys. Any such amounts which are not paid within thirty (30) days of demand therefor shall bear interest at the Default Rate from the date of demand
until paid.
Exhibit F-1
8
17.
Setoff
. Subject to the terms of this Section 17, Guarantor hereby grants to Agent
and each of the Lenders, a lien, security interest and right of setoff as security for all liabilities and obligations to Agent and the Lenders, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control of Agent or any Lender or any entity under the control of Agent or Lender, or in transit to any of them. At any time, from and after the occurrence of and during the
continuance of an Event of Default, Agent or any Lender may set off the same or any part thereof and apply the same to any liability or obligation of Guarantor even though unmatured and regardless of the adequacy of any other collateral securing the
Loan. Within five (5) Business Days of making any such set-off, Agent agrees to notify Guarantor thereof, provided that the failure by Agent to give such notice shall not affect the validity of such set-off.
18.
Counterparts
. Delivery of executed counterparts of this Guaranty by telecopy or other electronic means shall be effective as an
original.
[Signature page to follow]
Exhibit F-1
9
Witness the execution and delivery hereof as an instrument under seal as of the date first
written above.
|
|
|
|
|
GUARANTOR:
|
|
|
|
CEDAR REALTY TRUST, INC.
, a Maryland
corporation
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
[SIGNATURE PAGE TO
GUARANTY]
EXHIBIT F-2
FORM OF
SUBSIDIARY
GUARANTY
GUARANTY
This Guaranty (hereinafter, the “
Guaranty
”) is given pursuant to the terms and conditions of that certain Loan
Agreement, dated as of February 11, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “
Loan Agreement
”), among Cedar Realty Trust Partnership, L.P. (the
“
Borrower
”), the Lenders from time to time party thereto, and KeyBank National Association, as Administrative Agent (in such capacity as Administrative Agent, the “
Agent
”).
Capitalized terms used herein and not
otherwise specifically defined shall have the same meaning herein as in the Loan Agreement
.
FOR VALUE RECEIVED, and to induce
Agent and the Lenders to extend credit to the Borrower as provided for in the Loan Agreement and the other Loan Documents, each of the undersigned guarantors LISTED ON
SCHEDULE 1
attached hereto (individually and collectively, jointly and
severally, hereinafter, “
Guarantor
”), hereby unconditionally agrees as follows:
1.
Guaranty
. Each Guarantor, as a
primary party and not merely as a surety, unconditionally and irrevocably guarantees the prompt and full payment (and not merely the collectability), performance, and observance of all of the obligations, terms and conditions to be paid, performed
or observed by Borrower under the Note, Loan Agreement and each other Loan Document and any Swap Contract, to or on behalf of the Agent, the Lenders, or any one of them, each as the same may be hereafter amended, modified, extended, renewed or
recast, including, without limitation, all of the Obligations and the payment of all principal, interest, fees, all obligations and other charges when due under the Note, the Loan Agreement and each other Loan Document and any Swap Contract
(hereinafter, the “
Guaranteed Obligations
”).
Upon the occurrence of and during the continuance of any Event of Default
under the Loan Agreement, or any of the other Loan Documents, or if Agent has accelerated the Loan pursuant to a right to do so under the Loan Agreement, Agent may at its option proceed directly and at once, without notice (except as otherwise
provided under the Loan Agreement), against any Guarantor hereunder, without proceeding against Borrower, any other Guarantor, or any other person for the Obligations or the Guaranteed Obligations.
If Borrower, or any Guarantor if so required, shall fail or refuse to perform or continue performance of all of the Obligations on the part of
Borrower to be kept and performed, then, if an Event of Default exists on account thereof under the Loan Documents or this Guaranty, in addition to any other rights and remedies which Agent or any Lender may have hereunder or elsewhere, and not in
limitation thereof, Agent or any Lender, at such party’s option, may exercise any or all of its rights and remedies under the Loan Agreement and each other Loan Document.
Exhibit F-2
- 1
This Guaranty shall survive and continue in full force and effect beyond and after the payment
and satisfaction of the Guaranteed Obligations and the Obligations in the event Agent or any Lender is required to disgorge or return any payment or property received as a result of any laws pertaining to preferences, fraudulent transfers or
fraudulent conveyances.
2.
Waivers
. Each Guarantor hereby waives and relinquishes to the fullest extent now or hereafter not
prohibited by applicable law:
|
|
(a)
|
all suretyship defenses and defenses in the nature thereof;
|
|
|
(b)
|
any right or claim of right to cause a marshaling of the assets of Borrower, or, if there shall be more than one Guarantor, to require Agent to proceed against any other Guarantor or any of Guarantors in any particular
order;
|
|
|
(c)
|
until satisfaction in full of the Obligations of the Borrower to the Agent and the Lenders, and the satisfaction in full of the Guaranteed Obligations, or such Guarantor has been released from its obligations under this
Guaranty pursuant to Section 12 hereof, whichever is earlier, all rights and remedies, including, but not limited to, any rights of subrogation, contribution, reimbursement, exoneration or indemnification pursuant to any agreement, express or
implied, or now or hereafter accorded by applicable law to indemnitors, guarantors, sureties or accommodation parties; provided, however, unless Agent otherwise expressly agrees in writing, such waiver by any particular Guarantor shall not be
effective to the extent that by virtue thereof such Guarantor’s liability under this Guaranty is rendered invalid, voidable, or unenforceable under any applicable state or federal law dealing with the recovery or avoidance of so-called
preferences or fraudulent transfers or conveyances or otherwise;
|
|
|
(d)
|
notice of the acceptance hereof, presentment, demand for payment, protest, notice of protest, or any and all notice of nonpayment, nonperformance, nonobservance or default, or other proof or notice of demand whereby to
charge any Guarantor therefor;
|
|
|
(e)
|
the pleading of any statute of limitations as a defense to any Guarantor’s obligations hereunder;
|
|
|
(f)
|
the right to a trial by jury in any matter related to this Guaranty; and
|
|
|
(g)
|
the benefit of all other provisions of law which may be validly waived.
|
EACH GUARANTOR, AGENT
AND LENDERS MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS GUARANTY, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS
OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS OR ACTIONS OF AGENT OR ANY LENDER RELATING
Exhibit F-2
- 2
TO THE ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NONE OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, EACH GUARANTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH GUARANTOR CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER. THIS WAIVER IS GIVEN AS A MATERIAL INDUCEMENT TO AGENT AND THE LENDERS TO ACCEPT THIS GUARANTY AND TO MAKE THE LOAN.
3.
Cumulative Rights
. Agent’s and any Lender’s rights under this Guaranty shall be in addition to and not in limitation of all of the rights and remedies of Agent and any Lender under the Loan Documents. All rights and remedies of
Agent and any Lender shall be cumulative and may be exercised in such manner and combination as Agent or any Lender may determine.
4.
No Impairment
. The liability of each Guarantor hereunder shall in no way be limited or impaired by, and each Guarantor hereby assents to and agrees to be bound by, any amendment or modification of the provisions of the Loan Documents and any
Swap Contract to or with Agent or any Lender by Borrower or any other Guarantor or any person who succeeds any Guarantor as owner (or indirect owner as the case may be) of a Borrowing Base Property (hereinafter, the “
Property
”). In
addition, the liability of each Guarantor under this Guaranty and the other Loan Documents and any Swap Contract shall in no way be limited or impaired by:
|
|
(a)
|
any extensions of time for performance required by any of the Loan Documents and any Swap Contract;
|
|
|
(b)
|
any amendment to or modification of any of the Loan Documents and any Swap Contract;
|
|
|
(c)
|
any sale or assignment of the Loan, or any sale, transfer or exchange of all or part of the Property;
|
|
|
(d)
|
any exculpatory, or nonrecourse, or limited recourse, provision in any of the Loan Documents and any Swap Contract limiting Agent’s or any Lender’s rights to a deficiency judgment against Borrower or any other
person or entity;
|
|
|
(e)
|
the accuracy or inaccuracy of any of the representations or warranties made by or on behalf of Borrower, any general partner, owner, principal, or agent of Borrower, or any Guarantor, under any Loan Document or
otherwise;
|
|
|
(f)
|
the release of Borrower, any general partner, owner, principal, or agent of Borrower, or any other person or entity (other than such Guarantor
pursuant to Section 12 hereof), from performance or observance of any of the agreements,
|
Exhibit F-2
- 3
|
|
covenants, terms or conditions contained in any of the Loan Documents and any Swap Contract by operation of law, Agent’s or any Lender’s voluntary act, or otherwise;
|
|
|
(g)
|
the filing of any bankruptcy or reorganization proceeding by or against Borrower, any general partner, owner, principal, or agent of Borrower, any Guarantor, or any subsequent owner of the Property;
|
|
|
(h)
|
the release of any other party now or hereafter liable upon or in respect of this Guaranty or any of the other Loan Documents and any Swap Contract; or
|
|
|
(i)
|
the invalidity or unenforceability of all or any portion of any of the Loan Documents and any Swap Contract as to Borrower, any Guarantor, or any other person or entity.
|
Any of the foregoing may be accomplished with or without notice to Borrower, any general partner, owner, principal, or agent of Borrower, or
any Guarantor, and with or without consideration.
5.
Delay Not Waiver
. No delay on Agent’s or any Lender’s part in
exercising any right, power or privilege hereunder or under any of the Loan Documents shall operate as a waiver of any such privilege, power or right. No waiver by Agent or any Lender in any instance shall constitute a waiver in any other instance.
6.
Warranties and Representations
. Each Guarantor warrants and represents to Agent and each of the Lenders for the express purpose
of inducing Agent and the Lenders to enter into the Loan Agreement, to make each Loan Advance, to accept this Guaranty, and to otherwise complete the transactions contemplated by the Loan Agreement, as to such Guarantor, that as of the date of this
Guaranty, upon the date of each Loan Advance, and at all times thereafter until the Loan is repaid and all Guaranteed Obligations to Agent and the Lenders have been satisfied in full, or such Guarantor has been released from its obligations under
this Guaranty pursuant to Section 12 hereof, whichever is earlier, as follows:
|
|
(a)
|
Financial Information
. Copies of the financial statements of such Guarantor have been delivered to Agent and each Lender and each of the same fairly present such Guarantor’s financial condition as of the
dates thereof and no material and adverse change has occurred in such Guarantor’s financial condition or business since the respective dates thereof; and each financial statement of such Guarantor submitted in the future shall fairly present
such Guarantor’s financial condition as of the dates thereof.
|
|
|
(b)
|
No Violation
. The payment and performance by such Guarantor of the Guaranteed Obligations and such Guarantor’s obligations under this Guaranty, does not and shall not constitute a violation of any law,
order, regulation, contract or agreement to which such Guarantor is a party or by which such Guarantor or Guarantor’s property may be bound;
|
Exhibit F-2
- 4
|
|
(c)
|
No Litigation
. There is no material litigation now pending or, to the best of such Guarantor’s knowledge threatened in writing, against such Guarantor which, if adversely decided would materially impair the
ability of such Guarantor to pay and perform the Guaranteed Obligations, such Guarantor’s obligations under the Loan Agreement, this Guaranty or any other Loan Document.
|
|
|
(d)
|
Entity Matters
. If such Guarantor is a Delaware Guarantor (as defined in Schedule 1), such Guarantor is duly organized, validly existing entity organized and in good standing under the laws of the State of
Delaware, and has all requisite power and authority to conduct its business and to own its property as now conducted or owned, and is qualified to do business in all jurisdictions where the nature and extent of its business is such that such
qualification is required by law. If such Guarantor is a Pennsylvania Guarantor (as defined in Schedule 1), such Guarantor is duly organized, validly existing entity organized and in good standing under the laws of the Commonwealth of Pennsylvania,
and has all requisite power and authority to conduct its business and to own its property as now conducted or owned, and is qualified to do business in all jurisdictions where the nature and extent of its business is such that such qualification is
required by law. If such Guarantor is a Virginia Guarantor (as defined in Schedule 1), such Guarantor is duly organized, validly existing entity organized and in good standing under the laws of the Commonwealth of Virginia, and has all requisite
power and authority to conduct its business and to own its property as now conducted or owned, and is qualified to do business in all jurisdictions where the nature and extent of its business is such that such qualification is required by law.
|
|
|
(e)
|
Valid and Binding
. Each of the Loan Documents to which such Guarantor is a party constitutes such Guarantor’s legal, valid and binding obligation in accordance with the respective terms thereof, subject to
bankruptcy, insolvency and similar laws of general application affecting the rights and remedies of creditors and with respect to the availability of remedies of specific enforcement subject to the discretion of the court before which proceedings
therefor may be brought.
|
|
|
(f)
|
Solvency
. Such Guarantor is solvent and is not rendered insolvent by the obligations undertaken in this Guaranty. Such Guarantor is not contemplating either the filing of a petition or proceeding under any state
or federal bankruptcy or insolvency or reorganization laws or the liquidating of all or a major portion of such Guarantor’s property, and such Guarantor has no knowledge of any such petition or proceeding being filed against any other
Guarantor.
|
|
|
(g)
|
Material Economic Benefit
. The granting of the Credit Extensions to Borrower will constitute a material economic benefit to such Guarantor.
|
7.
Notices
. Any notice or other communication in connection with this Guaranty shall be in writing and (i) deposited in the United
States mail, postage prepaid by registered or certified mail, (ii) hand delivered by any commercially recognized courier service or overnight
Exhibit F-2
- 5
delivery service such as Federal Express, or (ii) sent by facsimile transmission if a FAX Number is designated below, addressed as follows:
If to any Guarantor:
c/o Cedar
Realty Trust Partnership L.P.
44 South Bayles Avenue
Port Washington, New York
Attention: Philip Mays
FAX
Number: (516) 767-6497
with a copy to:
Cedar Realty Trust Partnership L.P.
44 South Bayles Avenue
Port
Washington, New York
Attention: Stuart Widowski
FAX Number: (516) 767-6497
with copies by regular mail or such hand delivery or facsimile transmission to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New
York 10038-4982
Attention: Karen Scanna, Esquire
FAX Number: (212) 806-6006
If to Agent:
KeyBank National
Association
225 Franklin Street
Boston, Massachusetts 02110
Attention: Gregory W. Lane
FAX
No.: (617) 385-6293
with copies by regular mail or such hand delivery or facsimile transmission to:
Riemer & Braunstein LLP
Three Center Plaza, Suite 600
Boston, Massachusetts 02108
Attention: Kevin J. Lyons, Esquire
FAX No.: (617) 880-3456
Any such
addressee may change its address for such notices to any other address in the United States as such addressee shall have specified by written notice given as set forth above.
All periods of notice shall be measured from the deemed date of delivery. A notice shall be deemed to have been given, delivered and received
upon the earliest of: (i) if sent by such certified or registered mail, on the third Business Day following the date of post-mark, or (ii) if
Exhibit F-2
- 6
hand delivered by such courier or overnight delivery service, when so delivered or tendered for delivery during customary business hours on a Business Day at the specified address, or
(iii) if so mailed, on the date of actual receipt (or tender of delivery) as evidenced by the return receipt, or (iv) if so delivered, upon actual receipt, or (v) if facsimile transmission is a permitted means of giving notice, upon
receipt an evidenced by confirmation.
8.
No Oral Change
. No provision of this Guaranty may be changed, waived, discharged, or
terminated orally (in person or by telephone) or by any other means except by an instrument in writing signed by the party against whom enforcement of the change, waiver or discharge or termination is sought.
9.
Parties Bound; Benefit
. This Guaranty shall be binding upon each Guarantor and such Guarantor’s respective successors, assigns,
heirs and personal representatives and shall be for the benefit of Agent and each Lender, and of any subsequent holder of Agent’s or any Lender’s interest in the Loan and of any owner of a participation interest therein. In the event the
interest of Agent or any other Lender under the Loan Documents is sold or transferred, then the liability of each Guarantor to Agent or such Lender shall then be in favor of both the Agent or Lender originally named herein and each subsequent holder
of Agent’s or Lender’s interest therein, to the extent of their respective interests.
10.
Joint and Several
. If there is
more than one (1) Guarantor, the obligations of each Guarantor, and such Guarantor’s respective successors, assigns, heirs and personal representatives, shall be and remain joint and several. Except as otherwise provided herein, reference
to Guarantor shall include each Guarantor separately as well as all Guarantors collectively.
11.
Additional Guarantors
. The
initial Guarantors hereunder shall be each of the Guarantors that are signatories hereto and that are listed on
Schedule 1
attached hereto. From time to time subsequent to the time hereof, additional Guarantors may become parties hereto,
pursuant to the provisions of the Loan Agreement (each an “
Additional Guarantor
”) by executing a counterpart of this Guaranty in the form of
Exhibit A
attached hereto. Upon delivery of any such counterpart to Agent, notice of
which is hereby waived by Guarantors, each such Additional Guarantor shall be a Guarantor and shall be a party hereto effective as of the date of execution by such Guarantor. Each Guarantor expressly agrees that its obligations arising hereunder
shall not be affected or diminished by the addition or release of any other Guarantor hereunder, or by any election by Agent not to cause any Guarantor to become an Additional Guarantor hereunder. This Guaranty shall be fully effective as to any
Guarantor that is or becomes a party hereto regardless of whether any such person becomes or fails to become or ceases to be a Guarantor hereunder.
12.
Release of Guarantors
. Pursuant to the provisions of the Loan Agreement, a Guarantor may be released from its obligations under
this Guaranty by Agent’s execution of a Release of Guaranty in the form of
Exhibit B
attached hereto. Each Guarantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the release of any other
Guarantor hereunder.
Exhibit F-2
- 7
13.
Partial Invalidity
. Each of the provisions hereof shall be enforceable against each
Guarantor to the fullest extent now or hereafter not prohibited by applicable law. The invalidity or unenforceability of any provision hereof shall not limit the validity or enforceability of each other provision hereof.
14.
Governing Law
. This Guaranty and the rights and obligations of the parties hereunder shall in all respects be governed by and
construed and enforced in accordance with the internal laws of the State of New York. Agent or any Lender may enforce its rights hereunder and under the other Loan Documents, including, but not limited to, its rights to sue any Guarantor or to
collect any outstanding indebtedness in accordance with applicable law.
15.
Consent to Jurisdiction
. Each of Guarantor, Agent and
the Lenders (by their acceptance of this Guaranty) irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the courts of the State of New York located within the First Department of the New York
State Unified Court System and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty or any other Loan Document, or
for recognition or enforcement of any judgment, and each of said parties irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State Court or, to the fullest
extent permitted by applicable law, in such Federal Court. Each of said parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Guaranty or in any other Loan Document shall affect any right that the Agent or any Lender may otherwise have to bring any action or proceeding relating to this Guaranty or any other Loan Document against any
Guarantor or any other Loan Party or its properties in the courts of any jurisdiction. Each Guarantor hereby agrees and consents that in addition to any methods of service of process provided for under applicable law, all service of process in any
such suit, action or proceeding in any New York State or Federal Court located within the Southern District of the State of New York may be made by certified or registered mail, return receipt requested, directed to such Guarantor at the address
indicated in Section 7 above and service so made shall be deemed completed five (5) days after the same shall have been so mailed.
16.
[Reserved]
17.
Additional Covenant of the Guarantor
. Each Guarantor shall pay, perform, observe and comply with all of the obligations, terms, covenants and conditions set forth in this Guaranty and by any provisions of the Loan Agreement specifically
applicable to such Guarantor.
18.
Subordination
.
(a) Except as may be otherwise specifically provided for in the Loan Agreement with respect to Permitted Distributions, any indebtedness of
Borrower to any Guarantor, or to any affiliated entity, now or hereafter existing together with any interest thereon shall be, and such indebtedness is, hereby deferred, postponed and subordinated to the prior, full and Non-Contestable Payment and
satisfaction of all Obligations of Borrower to the Agent and the
Exhibit F-2
- 8
Lenders. Payment and satisfaction of the Obligations shall be deemed “Non-Contestable Payment” only upon such payment and satisfaction and the expiration of all periods of time within
which a claim for the recovery of a preferential payment, or fraudulent conveyance, or fraudulent transfer, in respect of payments received by Agent or any Lender as to the Obligations could be filed or asserted with: (A) no such claim having
been filed or asserted, or (B) if so filed or asserted, the final, non-appealable decision of a court of competent jurisdiction denying the claim or assertion.
(b) Except as may be otherwise specifically provided for in the Loan Agreement with respect to Permitted Distributions, at all times until the
full and Non-Contestable Payment and satisfaction of the Obligations of Borrower to Agent and the Lenders with respect to the Loan (and including interest accruing on the Loan Advances after the commencement of a case by or against Borrower under
any Debtor Relief Laws now or hereafter in effect, which interest the parties agree shall remain a claim that is prior and superior to any claim of any Guarantor or any affiliated entity notwithstanding any contrary practice, custom or ruling in
cases under the Debtor Relief Laws, as now or hereafter in effect, generally), each Guarantor, and each affiliated entity, agrees not to accept any payment or satisfaction for any kind of indebtedness of Borrower to any Guarantor, or any affiliated
entity, and hereby assigns such indebtedness to Agent, on behalf of the Lenders, including, but not limited to, the right to file proofs of claim and to vote thereon in connection with any such case under any Debtor Relief Laws, as now or hereafter
in effect, and the right to vote on any plan of reorganization.
(c) In addition to the foregoing, and not in limitation thereof, until
the full payment and satisfaction of all Obligations of Borrower to Agent and the Lenders, any claims of any Guarantor, or any affiliated entity, of subrogation, contribution, reimbursement, exoneration, indemnification, or reimbursement arising out
of any payment made on this Guaranty, whether such claim is based upon an express or implied contract, or operation of law, are hereby waived;
provided
,
however
, unless Agent otherwise expressly agrees in writing, such waiver by any
Guarantor shall not be effective to the extent that by virtue thereof such Guarantor’s liability under this Guaranty or under any other Loan Document is rendered invalid, voidable, or unenforceable under any applicable state or federal law
dealing with the recovery or avoidance of so-called preferences or fraudulent conveyances or otherwise.
19.
Legal Fees, Costs and
Expenses
. Each Guarantor further agrees to pay within thirty (30) days after demand all costs and expenses reasonably incurred by Agent and the Lenders, or their successors or assigns, in connection with enforcing any of the rights or
remedies of Agent or any Lender, or such successors or assigns, under or with respect to this Guaranty including, but not limited to, attorneys’ fees and the out-of-pocket expenses and disbursements of such attorneys. Any such amounts which are
not paid within thirty (30) days of demand therefor shall bear interest at the Default Rate from the date of demand until paid.
20.
Setoff
. Subject to the terms of this Section 20, each Guarantor hereby grants to Agent and each of the Lenders, a lien, security interest and right of setoff as security for all liabilities and obligations to Agent and the Lenders,
whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Agent or any Lender or any entity under the control of Agent or
Lender, or in transit to any of them. At any time, from and after the occurrence of and during
Exhibit F-2
- 9
the continuance of an Event of Default, Agent or any Lender may set off the same or any part thereof and apply the same to any liability or obligation of each Guarantor even though unmatured and
regardless of the adequacy of any other collateral securing the Loan. Within five (5) Business Days of making any such set-off, Agent agrees to notify each Guarantor thereof, provided that the failure by Agent to give such notice shall not
affect the validity of such set-off.
21.
Counterparts
. Delivery of executed counterparts of this Guaranty by telecopy or other
electronic means shall be effective as an original.
22.
ISDA ECP Guarantor Keepwell Terms
. The ISDA ECP Guarantor Keepwell Terms
published by the International Swaps and Derivatives Association, Inc., on April 18, 2013, attached hereto as
Schedule 2
, are incorporated and apply to this Guaranty. For the avoidance of doubt, a “Qualified Keepwell Provider,”
as such term is used in the ISDA ECP Guarantor Keepwell Terms, shall mean Cedar Realty Trust, Inc.
[Signature page to follow]
Exhibit F-2
-
10
Witness the execution and delivery hereof as an instrument under seal as of the date first
written above.
|
|
|
|
|
|
|
|
|
GUARANTOR:
|
|
|
|
|
|
|
CEDAR-SOUTH PHILADELPHIA I, LLC,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-SOUTH PHILADELPHIA II, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-RIVERVIEW LP
,
a
Pennsylvania limited partnership
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-RIVERVIEW, LLC
,
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR LENDER, LLC
,
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to
Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
CSC-RIVERVIEW LLC
,
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-DUBOIS, LLC
,
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR BRICKYARD, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR BRICKYARD II, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR ST. JAMES, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR KENLEY VILLAGE, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to
Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
CEDAR-VALLEY PLAZA, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-GLEN ALLEN UK, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-FREDERICKSBURG UK, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-REVERE LLC
,
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-PALMYRA, LLC
,
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-ANNIE LAND, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to
Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
CEDAR-FAIRVIEW COMMONS, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-NORWOOD, LLC
,
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-METRO SQUARE II, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
GREENTREE ROAD L.L.C 1
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
GREENTREE ROAD L.L.C. 2
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-BRISTOL, LLC
,
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to
Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
CEDAR-CIRCLE, LLC
,
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
HAMILTON FC ASSOCIATES, L.P
.
,
a Pennsylvania limited partnership
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-HAMILTON, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-LAKE RAYSTOWN, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR- PC PLAZA, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-TREXLER PLAZA 2, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to
Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
CEDAR-TREXLER PLAZA 3, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-CAMPBELLTOWN, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-CARLL’S CORNER, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR HUNTINGDON, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
WASHINGTON CENTER L.L.C. 1
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
WASHINGTON CENTER L.L.C. 2
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to
Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
CEDAR CENTER HOLDINGS L.L.C. 3
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
ACADEMY PLAZA L.L.C. 1
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
ACADEMY PLAZA L.L.C. 2
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
PORT RICHMOND L.L.C. 1
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
PORT RICHMOND L.L.C. 2
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR CARBONDALE, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
CEDAR-SECOND MEMBER, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
VIRGINIA KEMPSVILLE, LLC
,
a Virginia limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
VIRGINIA GENERAL BOOTH, LLC
,
a Virginia limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
VIRGINIA LITTLE CREEK, LLC
,
a Virginia limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
VIRGINIA SUFFOLK, LLC
,
a Virginia limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
VIRGINIA SMITHFIELD, LLC
,
a Virginia limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
FAIRVIEW PLAZA ASSOCIATES, L.P
.,
a Delaware limited partnership
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CIF-FAIRVIEW PLAZA ASSOCIATES, LLC
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
FAIRPORT ASSOCIATES, L.P
.,
a Delaware limited partnership
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
FORT WASHINGTON FITNESS, L.P
.,
a Delaware limited partnership
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-FORT WASHINGTON, LLC
,
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
NEWPORT PLAZA ASSOCIATES, L.P
.,
a Delaware limited partnership
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
CIF-NEWPORT PLAZA ASSOCIATES, LLC
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
HALIFAX PLAZA ASSOCIATES, L.P
.
,
a Delaware limited partnership
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CIF-HALIFAX PLAZA ASSOCIATES, LLC
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CIF FAIRPORT ASSOCIATES, LLC
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-TIMPANY, LLC
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CF POTTSGROVE ASSOCIATES, L.P.
a Pennsylvania limited partnership
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
CEDAR-POTTSGROVE, LLC
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR-POTTSGROVE GENERAL, LLC
a Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
|
CEDAR REALTY TRUST, INC
.,
a Maryland corporation,
solely in its
capacity as Qualified Keepwell
Provideras such term is defined in the
ISDA ECP Guarantor Keepwell Terms
referred to in Section 22 above
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to Subsidiary Guaranty]
|
|
|
|
|
|
|
|
|
CEDAR-BETHEL, LLC
a
Delaware limited liability company
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
[Signature pages to Subsidiary Guaranty]
SCHEDULE 1
INITIAL GUARANTORS
CEDAR-SOUTH PHILADELPHIA I, LLC, a Delaware limited liability company
CEDAR-SOUTH PHILADELPHIA II, LLC, a Delaware limited liability company
CEDAR-RIVERVIEW LP, a Pennsylvania limited partnership
CEDAR-RIVERVIEW, LLC, a Delaware limited liability company
CEDAR LENDER, LLC, a Delaware limited liability company
CSC-RIVERVIEW LLC, a Delaware limited liability company
CEDAR-DUBOIS, LLC, a Delaware limited liability company
CEDAR BRICKYARD, LLC, a Delaware limited liability company
CEDAR BRICKYARD II, LLC, a Delaware limited liability company
CEDAR ST. JAMES, LLC, a Delaware limited liability company
CEDAR KENLEY VILLAGE, LLC, a Delaware limited liability company
CEDAR-VALLEY PLAZA, LLC, a Delaware limited liability company
CEDAR-GLEN ALLEN UK, LLC, a Delaware limited liability company
CEDAR-FREDERICKSBURG UK, LLC, a Delaware limited liability company
CEDAR-REVERE LLC, a Delaware limited liability company
CEDAR-PALMYRA, LLC, a Delaware limited liability company
CEDAR-ANNIE LAND, LLC, a Delaware limited liability company
CEDAR-FAIRVIEW COMMONS, LLC, a Delaware limited liability company
CEDAR-NORWOOD, LLC, a Delaware limited liability company
CEDAR-METRO SQUARE II, LLC, a Delaware limited liability company
GREENTREE ROAD L.L.C 1, a Delaware limited liability company
GREENTREE ROAD L.L.C. 2, a Delaware limited liability company
CEDAR-BRISTOL, LLC, a Delaware limited liability company
CEDAR-CIRCLE, LLC, a Delaware limited liability company
HAMILTON FC ASSOCIATES, L.P., a Pennsylvania limited partnership
CEDAR-HAMILTON, LLC, a Delaware limited liability company
CEDAR-LAKE RAYSTOWN, LLC, a Delaware limited liability company
CEDAR- PC PLAZA, LLC, a Delaware limited liability company
CEDAR-TREXLER PLAZA 2, LLC, a Delaware limited liability company
CEDAR-TREXLER PLAZA 3, LLC, a Delaware limited liability company
CEDAR-CAMPBELLTOWN, LLC, a Delaware limited liability company
CEDAR-CARLL’S CORNER, LLC, a Delaware limited liability company
CEDAR HUNTINGDON, LLC, a Delaware limited liability company
WASHINGTON CENTER L.L.C. 1, a Delaware limited liability company
WASHINGTON CENTER L.L.C. 2, a Delaware limited liability company
CEDAR CENTER HOLDINGS L.L.C. 3, a Delaware limited liability company
ACADEMY PLAZA L.L.C. 1, a Delaware limited liability company
ACADEMY PLAZA L.L.C. 2, a Delaware limited liability company
PORT RICHMOND L.L.C. 1, a Delaware limited liability company
PORT RICHMOND L.L.C. 2, a Delaware limited liability company
CEDAR CARBONDALE, LLC, a Delaware limited liability company
CEDAR-SECOND MEMBER, LLC, a Delaware limited liability company
VIRGINIA KEMPSVILLE, LLC, a Virginia limited liability company
VIRGINIA GENERAL BOOTH, LLC, a Virginia limited liability company
VIRGINIA LITTLE CREEK, LLC, a Virginia limited liability company
VIRGINIA SUFFOLK, LLC, a Virginia limited liability company
VIRGINIA SMITHFIELD, LLC, a Virginia limited liability company
FAIRVIEW PLAZA ASSOCIATES, L.P., a Delaware limited partnership
CIF-FAIRVIEW PLAZA ASSOCIATES, LLC a Delaware limited liability company
FAIRPORT ASSOCIATES, L.P., a Delaware limited partnership
FORT WASHINGTON FITNESS, L.P., a Delaware limited partnership
CEDAR-FORT WASHINGTON, LLC, a Delaware limited liability company
NEWPORT PLAZA ASSOCIATES, L.P., a Delaware limited partnership
CIF-NEWPORT PLAZA ASSOCIATES, LLC a Delaware limited liability company
HALIFAX PLAZA ASSOCIATES, L.P., a Delaware limited partnership
CIF-HALIFAX PLAZA ASSOCIATES, LLC a Delaware limited liability company
CIF FAIRPORT ASSOCIATES, LLC a Delaware limited liability company
CEDAR-TIMPANY, LLC, a Delaware limited liability company
CF POTTSGROVE ASSOCIATES, L.P., a Pennsylvania limited partnership
CEDAR-POTTSGROVE GENERAL, LLC, a Delaware limited liability company
CEDAR-POTTSGROVE, LLC, a Delaware limited liability company
CEDAR-BETHEL, LLC, a Delaware limited liability company
SCHEDULE 2
International Swaps and Derivatives Association, Inc.
ISDA ECP GUARANTOR KEEPWELL TERMS
published on April 18, 2013
by the International Swaps and Derivatives Association, Inc.
(a)
Incorporation
These ISDA ECP Guarantor Keepwell Terms (“
Keepwell Terms
”) may be incorporated into any agreement, document, instrument, confirmation or other
writing, whether in physical or electronic form (“
Writing
”) by indicating in the Writing that, or the extent to which, these Keepwell Terms are incorporated into or otherwise applicable to such Writing. These Keepwell Terms will be
deemed to be part of or otherwise applicable to such a Writing to the same extent as if set forth therein except as otherwise modified or provided in that Writing. Terms defined herein shall have their meanings solely for purposes of these Keepwell
Terms unless otherwise provided in the relevant Writing.
(b)
Keepwell
Each Qualified Keepwell Provider with respect to a Swap Counterparty hereby absolutely, unconditionally and irrevocably undertakes to provide such funds or
other credit support as may be needed by any Supported Guarantor of such Swap Counterparty from time to time to honor all of such Supported Guarantor’s obligations under any Guaranty in respect of Swap Obligations of such Swap Counterparty
(but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such party’s obligations hereunder voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount). The obligations and undertakings of a Qualified Keepwell Provider with respect to any Swap Counterparty under this paragraph shall remain in full force and effect until all Swap Obligations of such Swap Counterparty in
respect of which a Supported Guarantor has provided a Guaranty have been indefeasibly paid and performed in full. The parties intend this provision to constitute, and this provision shall be deemed to constitute, a guarantee of the obligations of,
and a “keepwell, support, or other agreement” for the benefit of, each Supported Guarantor for all purposes of the CEA.
(c)
Definitions
As used herein, the following terms shall have the following meanings:
“
CEA
” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to
time, and any successor statute.
“
CFTC
” means the Commodity Futures Trading Commission.
“
DCM
” means a board of trade designated as a contract market under
Section 5 of
the CEA.
“
ECP
” means an “eligible contract participant” as defined in the CEA and regulations thereunder.
“
Eligibility Date
” means, with respect to a Guarantor and a Swap, the date on which a Guaranty becomes effective with respect to such Swap.
For the avoidance of doubt, the Eligibility Date shall be the date of the execution of a Swap if the corresponding Guaranty is then in effect, and otherwise it shall be the date of execution and delivery of such Guaranty unless the Guaranty
specifies a subsequent effective date.
“
Guarantor
” means any person or entity issuing or providing a Guaranty.
“
Guaranty
” means a guaranty or
assumption
of liability as surety with respect to obligations of one or more Swap
Counterparties.
“
Qualified Keepwell Provider
” means with respect to a Swap Counterparty, each person specified as such in this
Writing, and if no such persons are specified, each Guarantor in respect of Swap Obligations of such Swap Counterparty that is, as of the Eligibility Date, (i) a corporation, partnership, proprietorship, organization, trust, or other entity other
than a “commodity pool” as defined in Section la(10) of the CEA and CFTC regulations thereunder that has total assets exceeding $10,000,000 or (ii) an ECP that can cause another person to qualify as an ECP on the Eligibility Date under
Section 1a(18)(A)(v)(II) of the CEA by entering into a keepwell.
“
Supported Guarantor
” means with respect to a Swap Counterparty, each
person specified as such in this Writing, and if no such persons are specified, each Guarantor in respect of Swap Obligations of such Swap Counterparty that is, as of the Eligibility Date, (i) a corporation, partnership, proprietorship,
organization, trust or other entity other than a “commodity pool” as defined in Section la(10) of the CEA and CFTC regulations thereunder that would not be an ECP on the Eligibility Date but for the effect of these Keepwell Terms or (ii) a
person that the CFTC has determined is eligible to qualify as an ECP under Section 1a(18) of the CEA by virtue of being a beneficiary of a keepwell and that would not qualify as an ECP but for the effect of these Keepwell Terms.
“
Swap
” means any “swap” as defined in Section la(47) of the CEA and regulations thereunder other than (i) a swap entered into on,
or subject to the rules of, a DCM, or (ii) a commodity option entered into pursuant to CFTC Regulation 32.3(a).
“
Swap Counterparty
”
means any party hereto who is party to a Swap with one or more Swap Providers, whether at inception, by novation, or otherwise, including any successors to such party.
“
Swap Obligation
” means any obligation to pay or perform under any agreement, contract or transaction that constitutes a Swap between a Swap
Counterparty and a Swap Provider of such Swap Counterparty.
“
Swap Provider
” with respect to a Swap Counterparty, means the person or persons specified as
such in this Writing, and if no such persons are specified, each person who is the counterparty to a Swap with such Swap Counterparty hereunder, whether at inception, by novation, or otherwise, including any successors to such party.
EXHIBIT A
COUNTERPART TO GUARANTY
Reference is hereby made to that certain Guaranty (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “
Guaranty
”) dated as of February 11, 2014, executed and delivered by the parties listed on
Schedule 1
attached thereto pursuant to that certain Loan Agreement, dated as of February 11, 2014 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the “
Loan Agreement
”), among Cedar Realty Trust Partnership, L.P. (the “
Borrower
”), the Lenders from time to time party thereto,
and KeyBank National Association, as Administrative Agent (in such capacity as Administrative Agent, the “
Agent
”).
Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the
Guaranty
.
In witness whereof, the undersigned Additional Guarantor has caused the Guaranty to be executed and delivered by its
officer thereunto duly authorized as of , 20 .
Schedule 1
of the Guaranty is hereby updated with the attached
Schedule 1
.
|
|
|
|
|
|
|
|
|
|
|
|
|
Dated as of: , 20
|
|
|
|
|
|
|
|
|
|
[NAME OF ADDITIONAL GARANTOR]
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
Title:
|
|
|
SCHEDULE 1
EXISTING SUBSIDIARY GUARANTORS
EXHIBIT B
FORM OF RELEASE OF GUARANTOR
Reference is hereby made to that certain Guaranty (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “
Guaranty
”) dated as of February 11, 2014, executed and delivered by the parties listed on
Schedule 1
attached thereto pursuant to that certain Loan Agreement, dated as of February 11, 2014 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the “
Loan Agreement
”), among Cedar Realty Trust Partnership, L.P. (the “
Borrower
”), the Lenders from time to time party thereto,
and KeyBank National Association, as Administrative Agent (in such capacity as Administrative Agent, the “
Agent
”).
Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the
Guaranty
.
In witness whereof, the undersigned Agent, on behalf of the Lenders, hereby releases and discharges
from any and all obligations and liabilities of
to Agent and the Lenders under the Guaranty.
Dated as of: , 20
KEYBANK NATIONAL ASSOCIATION, as Agent
EXHIBIT H
FORM OF
CASH FLOW
PROJECTIONS
CEDAR REALTY TRUST, INC.
Projected
Funds From Operations (“FFO”), Operating Funds From Operations (“Operating FFO”) and Cash Flow Items
Year Ending December 31,
20XX
(Unaudited - dollars in thousands)
|
|
|
|
|
|
|
Revenues
|
|
|
|
|
|
Rents
|
|
|
|
|
|
Expense recoveries
|
|
|
|
|
|
Other
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
—
|
|
|
|
|
|
Property expenses
|
|
|
|
|
|
Rental expenses
|
|
|
|
|
|
Real estate taxes
|
|
|
|
|
|
|
|
|
|
|
|
Total property expenses
|
|
|
—
|
|
|
|
|
|
|
|
|
Property Operating Income
|
|
|
—
|
|
|
|
|
|
Other expenses and income
|
|
|
|
|
|
General and administrative
|
|
|
|
|
|
Interest expenses, net
|
|
|
|
|
|
Minority interests in consolidated joint ventures
|
|
|
|
|
|
|
|
|
Other noncash and unusual items
|
|
|
|
|
|
Depreciation and amortization
|
|
|
|
|
|
|
|
|
|
|
|
Net Income (Loss)
|
|
|
—
|
|
|
Preferred stock dividends
|
|
|
|
|
|
Limited partners’ interest
|
|
|
|
|
|
|
|
|
|
|
|
Income (Loss) Attributable to Common Shareholders
|
|
|
—
|
|
|
Add/(deduct)
|
|
|
|
|
|
Real estate depreciation
|
|
|
|
|
|
Gains on sales - dispositions
|
|
|
|
|
|
Limited partners’ interest
|
|
|
|
|
|
Minority interest in consolidated joint ventures
|
|
|
|
|
|
Minority interests’ share of FFO applicable to consolidated JVs
|
|
|
|
|
|
|
|
|
|
|
|
FFO
|
|
|
—
|
|
Exhibit H
-
1
|
|
|
|
|
|
|
Add/(deduct) the pro rata share of
|
|
|
|
|
|
Management transition charges
|
|
|
|
|
|
Preferred stock redemption costs
|
|
|
|
|
|
Costs related to early extinguishment of debt
|
|
|
|
|
|
|
|
|
|
|
|
Operating FFO
|
|
|
—
|
|
|
|
|
|
Add (deduct) pro rata share:
|
|
|
|
|
|
Straight-line rents
|
|
|
|
|
|
Amortization of intangible lease liabilities
|
|
|
|
|
|
Expense accruals related to share-based compensation
|
|
|
|
|
|
Amortization of debt discount/premium
|
|
|
|
|
|
Amortization of deferred financing costs
|
|
|
|
|
|
Capitalized Interest
|
|
|
|
|
|
Capitalized lease origination expenses
|
|
|
|
|
|
Maintenance capital expenditures (excluding redevelopments)
|
|
|
|
|
|
Scheduled debt principal amortization payments
|
|
|
|
|
|
|
|
|
|
|
|
AFFO
|
|
$
|
—
|
|
|
|
|
|
|
|
Exhibit H
-
2
